United States v. Eversole

Senior Judge COX

delivered the opinion of the Court.

Appellant was a sergeant first class (E-7) on the brink of retirement eligibility at the time of his court-martial. He was charged with sodomy, aggravated assault, bigamy, adultery, and obstruction of justice.¹ Despite the apparent seriousness of the Charges, the convening authority referred them to a special court-martial. Appellant pleaded not guilty to all Charges and specifications, but a military judge sitting alone convicted him of aggravated assault, bigamy, adultery, and obstruction of justice. The judge sentenced appellant to reduction to E-1, confinement for 6 months, and a bad-conduct discharge (which, except for forfeitures, is essentially the jurisdictional limit of the court-martial, see Art. 19, Uniform Code of Military Justice, 10 USC § 819). The convening authority approved the sentence.

In an unpublished opinion dated June 12, 1998, the Court of Criminal Appeals, utilizing its authority to reweigh evidence under Article 66(c), UCMJ, 10 USC § 866(c), found the evidence of aggravated assault insufficient, and it dismissed that Charge and its specification. However, the court affirmed the findings of guilty of bigamy, adultery, and obstructing justice. Reassessing sentence, the court set aside 3 months of appellant’s already-served confinement, but it approved the remaining sentence. The granted issue concerns the appropriateness of the Court of Criminal Appeals’ action in reassessing sentence, as opposed to remanding for a rehearing on sentence. 51 MJ 358 (1999).

The legal principles applicable to this situation have been thoroughly developed. See United States v. Boone, 49 MJ 187, 194-96 (1998); cf. United States v. Hawes, 51 MJ 258, 260 (1999). There is no question but that the Court of Criminal Appeals has the jurisdiction, authority, and expertise to reassess court-martial sentences, even after dismissing charges. Jackson v. Taylor, 353 U.S. 569, 576-80, 77 S.Ct. 1027, 1 L.Ed.2d 1045 (1957)(approving the then-Board of Review’s reassessment of sentence from life to 20-years’ confinement, after Board set aside a murder charge but affirmed an attempted rape charge). The operative language of Article 66(c) conferring the power on the Courts of Criminal Appeals to “affirm only such ... sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved,” has not changed a bit since Jackson v. Taylor, or indeed since the inception of the Uniform Code.

When a Court of Criminal Appeals reassesses a sentence due to some error in the proceedings (including an erroneous conviction), the stock formula is for it to affirm, if it feels that it can, only so much of the sentence as “would have been imposed at the original trial absent the error.” United States v. Taylor, 47 MJ 322, 325 (1997). Otherwise, the court must order a rehearing on sentence. United States v. Jones, 39 MJ 315, 317 (CMA 1994). We, in turn, are obliged not to “disturb” the intermediate court’s reassessment, except to “prevent obvious miscarriages of justice or abuses of discretion.” Id., quoting United States v. Dukes, 5 MJ 71, 73 (CMA 1978). Alchemistic formulae aside, the intermediate court’s ability to know what magnitude of sentence the trial court would have imposed, absent the error, continues to bedevil the appellate process.

The instant facts are illustrative. Appellant made a colossal mess of his domestic life, and it began to interfere with his military career. Then he compounded his problems with an ever-enlarging web of deceit and deception. {See extract from unpublished opinion of Court of Criminal Appeals, appended hereto.) Not least of the allegations was the supposed aggravated assault on his ex-wife, which Charge the Court of Criminal Appeals subsequently dismissed.² Under ordinary circumstances, we might have felt quite confident that the Court of Criminal Appeals had made a good approximation of a sentence the trial court would have imposed. The court did, after all, halve appellant’s adjudged sentence to confinement (6 months to 3).

These were not ordinary circumstances, however. Bigamy, sodomy, adultery, and obstruction of justice, in combination, generally are not viewed as insignificant offenses. Yet, as indicated, the Charges were referred to a special court-martial. Plainly, already impacting the thinking at the referral stage was the fact of appellant’s status as a noncommissioned officer with 19-plus years of creditable service. That is to say, under consideration was the fact that a punitive discharge alone would have the effect of depriving appellant of a cumulatively huge sum of pension money, a sum that rendered typical confinement and forfeitures for such offenses insignificant.

Moreover, over three years later, when the dust settled at the Court of Criminal Appeals, the overriding question remained whether to terminate appellant’s imminent pension by approving the bad-conduct discharge. With all due respect to the good faith and intentions of the Court of Criminal Appeals, we are at a loss to know how any appellate authority could know, with any degree of certainty, what a trial court would have done regarding the punitive discharge under these circumstances. Solomon, at least, could offer to split the baby. A punitive discharge cannot be split. It is all or nothing; there is no middle ground. Indeed, it is possible that the Court of Criminal Appeals found itself in a no-win situation: Affirm the discharge and arguably impact appellant in a manner all out of proportion to his offenses; or, being unable to affirm an appropriate punishment, set aside the discharge and hand appellant an arguable windfall.

In our judgment, this fairly unique type of dilemma ought to be resolved by a trial court if an accused’s fundamental right to trial is to be vindicated. Cf. United States v. Peoples, 29 MJ 426, 429 (CMA 1990). At the same time, the Government is protected from suffering an unjust windfall because its right to present a sentencing case to a trial court is preserved. Consider, for example, that a different lower court, on the same facts, might have set aside the punitive discharge, depriving the Government of a trial forum. Accordingly, under these unusual circumstances, we hold that the Court of Criminal Appeals abused its discretion in reassessing appellant’s sentence.³

The decision of the United States Army Court of Criminal Appeals is affirmed as to findings. The sentence, however, is set aside. The record is returned to the Judge Advocate General of the Army. A rehearing on sentence may be ordered.

APPENDIX

United States v. Eversole, ARMY 9600466, Memorandum Opinion and Action on Petition for New Trial, 12 June 1998, at 3-5:

Facts

At the time of his court-martial in March 1996, appellant had over nineteen years of service. The charges in this case stem from his efforts to manipulate both an estranged wife and a fiancée while preserving his finances, his home, and his retirement.

In January 1993, appellant married a Korean woman named Pok Sun, in Seoul, Korea. In February 1993, appellant and his new bride, pursuant to orders reassigning him to Fort Leonard Wood, moved into a home he previously owned in Missouri. The marriage quickly deteriorated into one involving physical and verbal confrontation by both parties. In October 1993, appellant moved out of his home and filed for divorce.

In November 1993, appellant moved in with Ms. Burruss and her two daughters. On 4 December 1993, civilian authorities arrested appellant for assaulting and hospitalizing Pok Sun. Appellant pleaded guilty to this offense in civilian court. Appellant was also reduced in rank by an administrative reduction board as a result of his civilian conviction. While the record is not clear, it appears that several months later, appellant and Pok Sun subsequently reconciled (although he continued to live with Ms. Burruss); that Pok Sun withdrew her complaint; and that the civilian conviction and military administrative reduction board were withdrawn.

In June 1994, appellant and Ms. Burruss began a sexual relationship even though appellant was still married to Pok Sun. At a 4 November 1994 divorce proceeding, appellant postponed his divorce from Pok Sun so that she could have gall bladder surgery at Army expense and obtain a green card. That same day, appellant went home to Ms. Burruss and told her his divorce was final and that they could get married.

On 30 December 1994, appellant, Ms. Burruss, and her two children drove from Fort Leonard Wood to Arkansas, where appellant and Ms. Burruss were married. In January 1995, Ms. Burruss learned that appellant’s divorce from Pok Sun was not final, when court papers arrived in the mail stating that he was separated but not divorced. Nevertheless, appellant and Ms. Burruss continued to live together. Appellant never applied for an identification card or sought military benefits for Ms. Burruss.

Appellant’s divorce from Pok Sun was final on 3 May 1995. On 5 May 1995, without telling Ms. Burruss, appellant moved his possessions out of Ms. Burruss’s trailer and back into his home. Appellant testified that he then went hunting and fishing for a few days by himself. Pok Sun testified that she went with appellant during this period and that they engaged in sexual intercourse and sodomy. In either event, Pok Sun continued to live in appellant’s home until the end of June 1995, even though appellant was awarded sole possession of the home in the divorce decree.

Between 5-8 May 1995, after appellant moved out of her trailer, Ms. Burruss reported their illegal marriage to his company commander. She specifically asked for help in getting the money back that she spent on appellant for numerous items, including a rifle, a tool box for his truck, fishing gear, camping equipment, jewelry, legal expenses, $250.00 to bail him out of jail, and substantial amounts of money to pay his bills when his pay was garnished because of unpaid Deferred Payment Plan debts.

About 8-10 May 1995, appellant discovered that Ms. Burruss had reported him to his commander. He explained to Ms. Burruss the ramifications of her report and quickly reconciled with her. On 19 May 1995, appellant gave military police investigators (MPI) a detailed sworn statement in which he admitted his adulterous relationship with Ms. Burruss but denied that he had married her. His statement described in detail how Ms. Burruss confessed to him that she had faked the marriage by getting another man to forge appellant’s signature on the marriage license request and actually pose as appellant during the marriage ceremony. On 24 May 1995, Ms. Burruss gave a detailed sworn statement to MPI corroborating appellant’s incredulous story about Ms. Burruss faking their marriage in December 1994. Subsequent handwriting analysis determined that appellant did sign the 30 December 1994 marriage license application. At trial in March 1996, appellant and Ms. Burruss both testified that they did get married on 30 December 1994.

In August 1995, appellant permitted Ms. Burruss and her children to move into his house and live with him but required Ms. Burruss to sign a lease and pay $300.00 per month rent to him. On 19 September 1995, Pok Sun came to appellant’s house and got into a physical fight with Ms. Burruss. The fight lasted about fifteen minutes and required police intervention. Both women received minor injuries. Pok Sun claims that during the fight appellant kicked her in the head while Ms. Burruss was sitting on top of her. This alleged kick is the basis of the aggravated assault conviction. Ms. Burruss and appellant both testified that appellant was not present during the fight. No medical evidence was presented to corroborate a kick to the head. Neighbors gave conflicting testimony concerning whether appellant was present during the fight. The police officer who responded to the scene and found Ms. Burruss still sitting on Pok Sun could not substantiate that appellant was present at the time of the fight.

On 20 September 1995, charges were preferred against appellant for adultery, bigamy, and sodomy.^* The aggravated assault charge was preferred on 19 October 1995. Appellant was arraigned on these charges on 8 January 1996, with a tentative trial date set for early February 1996.

Appellant testified that he asked Pok Sun “a couple of times a week” in January 1996 about her upcoming testimony in his court-martial. Appellant then prepared a statement for Pok Sun to sign. This statement retracted Pok Sun’s two prior statements to military and civilian police and corroborated appellant’s version of the sodomy and assault charges. Appellant testified that on the morning of 24 January 1996, he took this statement to Pok Sun and asked her to sign it. She declined. Appellant then immediately took Pok Sun to Rolla, Missouri, where they signed an application for marriage. Appellant testified that they then returned to Pok Sun’s residence, where she did sign the statement prepared by appellant. Appellant testified that he never intended to remarry Pok Sun and that he signed the marriage application only to ensure that Pok Sun testify truthfully at his court-martial. Appellant did not give this statement to his defense counsel until 4 March 1996, the day before trial on the merits. That same day, 4 March 1996, appellant legally married Ms. Burruss. This marriage was not disclosed to the trial judge until the sentencing phase of the trial.

On 27 February 1996, obstruction of justice charges were preferred against appellant for attempting to influence Pok Sun’s testimony in his upcoming court-martial during the period from on or about 1 January 1996 to on or about 15 February 1996. The military judge convicted appellant of obstruction of justice “by making statements and promises to her [Pok Sun], and by applying for a license to marry her, to induce her to wrongfully provide false information or testimony in his own case.”

1 . Violations of Articles 125, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 925, 928, and 934.

2 . As a collateral consequence of dismissing the aggravated assault Charge and specification, the Court of Criminal Appeals was not obliged to deal with appellant’s petition for new trial based upon an affidavit purportedly made by a close friend of the prosecutrix, the former Mrs. Ever-sole. Therein, affiant avers that the former Mrs. Eversole admitted to her that she had lied to military investigators about appellant assaulting her, and she asked affiant to perjure herself at appellant’s court-marital, which affiant refused to do. Affiant avers that she kept quiet about these matters and did not come forward to report them to authorities. Affiant was not a witness at the court-martial.

3 . The Court of Criminal Appeals’ decision to reassess sentence, rather than remand to the trial court, also had the incidental effect of cutting off the convening authority (who referred these Charges to a special court-martial in the first instance) from reconsidering what punishment to approve minus the aggravated assault conviction.

* Appellant was acquitted of the sodomy charges that were alleged to have occurred 4-6 May 1995 between him and Pok Sun.