United States v. Arellano

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.A. FISCHER, K.M. MCDONALD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
MANUEL L. ARELLANO, JR.
HOSPITAL CORPSMAN SECOND CLASS (E-5), U.S. NAVY
NMCCA 201400287
GENERAL COURT-MARTIAL
Sentence Adjudged: 2 April 2014.
Military Judge: CDR John A. Maksym, JAGC, USN.
Convening Authority: Commander, U.S. Naval Forces Japan,
Yokosuka, Japan.
Force Judge Advocate's Recommendation: CDR T.D. Stone,
JAGC, USN.
For Appellant: Capt Michael Magee, USMC.
For Appellee: LCDR Jeremy R. Brooks, JAGC, USN; Capt
Matthew M. Harris, USMC.
26 March 2015
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of attempted
rape, rape, and disorderly conduct in violation of Articles 80,
120, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 880, 920, and 934. The military judge sentenced the
appellant to reduction to pay grade E-1, forfeiture of all pay
and allowances, a $90,000.00 fine, confinement for nine years,
and a dishonorable discharge. The convening authority (CA)
approved the sentence as adjudged, however, pursuant to the
pretrial agreement, the CA suspended confinement in excess of 60
months for the period of confinement adjudged and suspended the
fine for six months from the date of the CA’s action.
The appellant raises the following two assignments of
error: 1 (1) his right to due process was violated when he was
subject to military prosecution after the host-nation’s
authorities conducted an investigation and declined to
prosecute; and (2) the military judge erred by failing to sua
sponte award the appellant pretrial punishment credit against
his sentence for the approximately twenty months he was subject
to certain liberty restrictions prior to trial. 2
After careful consideration of the record of trial, the
appellant's assignments of error, and the parties’ pleadings, we
conclude that the findings and the sentence are correct in law
and fact and that no error materially prejudicial to the
substantial rights of the appellant was committed. Arts. 59(a)
and 66(c), UCMJ.
Background
The appellant was stationed in Japan, pursuant to military
orders when he raped a Japanese national outside of Naval Air
Facility Atsugi. Based on his status as an active duty service
member, the appellant was subject to the Status of Forces
Agreement (SOFA) between the United States and Japan. 3
The victim initially reported the rape to the Naval
Criminal Investigative Service, who, in accordance with the
terms of the SOFA, notified Japanese law enforcement of the
allegations.
1
The appellant’s two assignments of error (AOEs) are raised pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
2
Having reviewed the record, we find this assignment of error raised by the
appellant to be without merit. United States v. Clifton, 35 M.J. 79, 81-82
(C.M.A. 1992).
3
Agreement Under Article VI of the Treaty of Mutual Cooperation and Security
Between the United States of America and Japan , Regarding Facilities and
Areas and the Status of United States Armed Forces in Japan, Art. XIV(8),
Jan. 19, 1960, 11 U.S.T. 1652.
2
Thereafter, Japanese police conducted their own
investigation into the allegations, but ultimately the Japanese
authorities declined to prosecute the appellant. Instead, the
Japanese authorities transferred the case to the U.S. Navy for
disposition as contemplated under the SOFA.
At trial, the appellant entered unconditional guilty pleas
to attempted rape and rape under Article 120, UCMJ, the offenses
that took place off-base.
Discussion
Violation of Due Process
The appellant claims for the first time on appeal that his
right to Due Process under the Fourteenth Amendment was violated
because he was subjected to military prosecution after Japanese
law enforcement conducted a full investigation and declined to
prosecute.
Claims of due process violations are a question of law that
we review de novo. United States v. Lewis, 69 M.J. 379, 383
(C.A.A.F. 2011). In general, a plea of guilty waives non-
jurisdictional errors, which occurred prior to the entry of the
guilty plea. United States v. Bradley, 68 M.J. 279, 281
(C.A.A.F. 2010) (“An unconditional plea of guilty waives all
nonjurisdictional defects at earlier stages of the
proceedings.”) (citations omitted); see also United States v.
Lee, 73 M.J. 166, 167 (C.A.A.F. 2014). The record before us is
clear that the appellant freely and unconditionally pleaded
guilty and thereby forfeits his right to appellate review of
this nonjurisdictional issue. We therefore decline to grant
relief.
Conclusion
Accordingly, the findings and the sentence as approved by
the CA are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
3