United States v. BABAUTA

UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS Washington, DC UNITED STATES v. Sean A. STROMAN Seaman Apprentice (E-2), United States Coast Guard CGCMS 24391 Docket No. 1302 May 12, 2009 Special Court-Martial convened by Commander, Coast Guard Sector Corpus Christi. Tried at Corpus Christi, Texas, on 13 December 2007. Military Judge: CDR Stephen P. McCleary, USCG Trial Counsel: LT Marc A. Zlomek, USCG Assistant Trial Counsel LCDR Curtis E. Borland, USCG Defense Counsel: LT Tyquili R. Booker, JAGC, USN Appellate Defense Counsel: LT Robert M. Pirone, USCGR Appellate Government Counsel: LT Paul R. Casey, USCG LCDR Brian K. Koshulsky, USCG BEFORE MCCLELLAND, KANTOR & MCGUIRE Appellate Military Judges Per Curiam: Appellant was tried by special court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of one specification each of wrongfully introducing cocaine onto an installation used by the armed forces and of wrongfully distributing cocaine, and three specifications of wrongfully using cocaine, all in violation of Article 112a, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to confinement for ten months, reduction to E-1, and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged except for confinement in excess of 120 days, which was disapproved, pursuant to the pretrial agreement.  United States v. Sean A. STROMAN, No. 1302 (C.G.Ct.Crim.App. 2009) Before this Court, without admitting that the findings and sentence are correct in law and fact, Appellant has submitted this case on its merits as to any and all errors. We note an apparent misstatement by the military judge after sentencing, concerning the effective date of a reduction in grade. After announcing sentence, when discussing the effect of the pretrial agreement on the sentence, the military judge said, “And then finally the reduction I adjudged may be approved as adjudged. So that will go into effect – that won’t go into effect until the Convening Authority acts on your sentence.” (R. at 92.) This is contrary to Article 57(a)(1), UCMJ, which provides that a reduction in grade, as well as a forfeiture of pay, takes effect on the earlier of fourteen days after the sentence is adjudged or the date the sentence is approved by the Convening Authority. We do not discern any prejudice to Appellant from this misstatement. We have reviewed the record in accordance with Article 66, UCMJ. Upon such review, the findings and sentence are determined to be correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and the sentence, as approved below, are affirmed. For the Court, Ryan M. Gray Clerk of the Court

UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS Washington, D.C. UNITED STATES v. William E. DANIEL, Fireman Apprentice (E-2), U.S. Coast Guard CGCMG 0241 Docket No. 1296 June 17, 2009 General Court-Martial convened by Commander, Maintenance and Logistics Command Atlantic. Tried at Norfolk, Virginia, on 5 September 2007. Military Judge: CAPT Brian M. Judge, USCG Trial Counsel: LT Jeffery S. Howard, USCG Assistant Trial Counsel: LT Michael R. Vaughn, USCGR Defense Counsel: LTJG Tim Pasken, JAGC, USNR Appellate Defense Counsel: LT Robert M. Pirone, USCGR Appellate Government Counsel: LT Ronald B. Seely, USCGR BEFORE MCCLELLAND, TOUSLEY & CHANEY Appellate Military Judges Per Curiam: Appellant was tried by general court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of indecent assault and three specifications of violating 18 U.S.C. § 2252A by receiving or possessing three or more visual depictions of child pornography, all in violation of Article 134, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to confinement for thirty-two months, reduction to E-1, forfeiture of all pay and allowances, and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged. The sentence was unaffected by the pretrial agreement.  United States v. William E. DANIEL, No. 1296 (C.G.Ct.Crim.App. 2009) Before this Court, Appellant assigns as error that the military judge abused his discretion when he admitted Prosecution Exhibit 3 over defense objection because the photographs were not properly authenticated, nor was a proper foundation established. We find no error and affirm. Appellant was charged with a specification of indecent assault under Article 134, UCMJ. Specification 1 alleges that Appellant “did . . . commit an indecent assault upon [SC], a person not his wife, by lowering [SC’s] pants and fondling and photographing his penis while the said [SC] was asleep, with intent to gratify his sexual desires.” In the stipulation of fact admitted during the providence inquiry, the photographs referred to in the specification were described as “nine photographs of [SC’s] penis, one of which included [Appellant’s] own penis.” (Prosecution Ex. 1 at 2, ¶ 8.) After Appellant was found guilty based on his pleas of guilty, the Government sought to introduce in aggravation sixteen photographs, identified as Prosecution Exhibit 3. (R. at 97.) Appellant objected “based on authenticity, lack of foundation,” as well as based on Rule for Courts-Martial (R.C.M.) 1001(b)(4), Manual for Courts-Martial, United States (2005 ed.) and Military Rule of Evidence 403. (R. at 97.) Special Agent Green of the Coast Guard Investigative Service (CGIS) served as a government witness to authenticate Prosecution Exhibit 3. He testified that Special Agent Tracey had sent Appellant’s computer to the Forensic Unit, and the photographs that became Prosecution Exhibit 3 were found on the computer. (R. at 107-08.) Special Agent Tracey had the responsibility to find out who were the people in the photographs. To that end, Special Agents Tracey and Green interviewed SC concerning the photographs, which they showed to SC in sequence. (R. at 107-110.) Special Agent Green testified that SC identified himself in the first photograph, washing dishes in his apartment. (R. at 109.) According to Special Agent Green, SC narrated the first two photographs as himself cleaning up around the house, and the next five as Appellant photographed by Appellant. (R. at 112.) Special Agent Green described the eighth photograph as SC lying on his back with his penis exposed and Appellant’s hands pulling SC’s pants down. (R. at 110.) He described the sixteenth photograph as SC lying on his back with his penis exposed and Appellant’s hands 2  United States v. William E. DANIEL, No. 1296 (C.G.Ct.Crim.App. 2009) around SC’s penis, masturbating him. (R. at 117.) Special Agent Green testified that SC’s demeanor changed upon seeing the eighth photograph, and by the end of the interview he was very upset. (R. at 112, 114, 115.) This was the first time SC was aware of Appellant’s acts alleged in Specification 1,

UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS Washington, D.C. UNITED STATES v. Robert S. TIJERINA, Electronics Technician (E-4), U.S. Coast Guard CGCMS 24395 Docket No. 1306 July 13, 2009 Special Court-Martial convened by Commanding Officer, USCGC GALLATIN (WHEC-721). Tried at Charleston, South Carolina, on 15 January 2008. Military Judge: CAPT Brian M. Judge, USCG Trial Counsel: LT Benedict S. Gullo, USCGR Assistant Trial Counsel: LT Neal J. Lawson, USCGR Defense Counsel: LT Ryan C. Mattina, JAGC, USN Appellate Defense Counsel: LCDR Angela R. Watson, USCG Appellate Government Counsel: CDR Stephen P. McCleary, USCG BEFORE MCCLELLAND, TOUSLEY & CHANEY Appellate Military Judges Per curiam: Appellant was tried by special court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of conspiracy, in violation of Article 81, Uniform Code of Military Justice (UCMJ); one specification of making a false official statement, in violation of Article 107, UCMJ; one specification each of wrongfully using marijuana and wrongfully using cocaine, both in violation of Article 112a, UCMJ; and one specification each of an indecent act and obstructing justice, both in violation of Article 134, UCMJ. The military judge sentenced Appellant to confinement for three months, reduction to E-1, and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged. The pretrial agreement did not affect the sentence.  United States v. Robert S. TIJERINA, No. 1306 (C.G.Ct.Crim.App. 2009) Before this Court, without admitting that the findings and sentence are correct in law and fact, Appellant has submitted this case on its merits as to any and all errors. Decision We have reviewed the record in accordance with Article 66, UCMJ. Upon such review, the findings and sentence are determined to be correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and the sentence, as approved below, are affirmed. For the Court, Ryan M. Gray Clerk of the Court 2

CORRECTED UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS Washington, D.C. UNITED STATES v. Nicholas J. AMOROSO Information System Technician Third Class (E-4), U.S. Coast Guard CGCMG 0251 Docket No. 1313 8 December 2009 General court-martial convened by Commander, Maintenance and Logistics Command Atlantic. Tried at Norfolk, Virginia on 27 May 2008. Military Judge: CAPT Brian M. Judge, USCG Trial Counsel: LT Jeffery S. Howard, USCG Assistant Trial Counsel: LT Janine E. Donovan, USCG Defense Counsel: LT Eric S. Nelson, JAGC, USN Assistant Defense Counsel: LT Theresa Mainuli, JAGC, USN Appellate Defense Counsel: CDR Necia L. Chambliss, USCGR Appellate Government Counsel: LCDR Brian K. Koshulsky, USCG Appellate Government Counsel: LT Emily P. Reuter, USCG BEFORE MCCLELLAND, TOUSLEY & MCGUIRE Appellate Military Judges Per curiam: Appellant was tried by general court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of attempting to furnish alcohol to a minor and three specifications of attempting to communicate indecent language to a minor, all in violation of Article 80, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to confinement for ten months, reduction to E-1, forfeiture of all pay and allowances, and a bad-conduct discharge. The  United States v. Nicholas J. AMOROSO, No. 1313 (C.G.Ct.Crim.App. 2009) Convening Authority approved the sentence as adjudged and suspended confinement in excess of six months for six months, pursuant to the pretrial agreement. Before this court, Appellant has assigned two errors: (1) the omission of the military judge’s ruling on defense motions renders the record of the trial incomplete; and (2) the Court should consider the Naval Brig’s incorrect information on multiple DD Forms 2791 in determining the appropriate sentence to affirm. The first assigned error, concerning the omission of the military judge’s ruling, has been corrected. This Court has granted, without Appellant’s objection, the Government’s Motion to Attach an affidavit of the military judge, accompanied by his Opinion and Order that he had issued on 1 April 2008. The affidavit indicates that the Opinion and Order were inadvertently omitted from the record of trial. A record of trial may be corrected during appellate review, and a Certificate of Correction is not the exclusive means of doing so. United States v. Roberts, 7 USCMA 322, 22 C.M.R. 112, 115 (1956); see United States v. Mosley, 35 M.J. 693, 695 (N.M.C.M.R. 1992). It appears that there is no issue of fact concerning the materials that were the subject of the Government’s Motion to Attach Affidavit. These materials complete the record of trial and moot the issue. The second assigned error, regarding incorrect DD Forms 2791, has also been corrected. DD Form 2791, Notice of Release/Acknowledgment of Convicted Sex Offender Registration Requirements, is used by military confinement facilities to provide information to State and local agencies concerning convictions of sexual offenses, as required by Federal law. The Government concedes in its Answer and Brief that the DD Forms 2791 originally provided to State and local agencies concerning Appellant’s convictions were inaccurate. The Government avers that corrected forms were prepared in consultation with Appellant’s appellate defense counsel, and that they were sent to all entities that received the original forms. This Court has granted the Government’s Motion to Attach copies of the corrected forms. 2  United States v. Nicholas J. AMOROSO, No. 1313 (C.G.Ct.Crim.App. 2009) There is no indication that Appellant has suffered any prejudice from distribution of the original inaccurate forms. We see no reason to reduce Appellant’s sentence on account of the mistake that has been corrected. Decision We have reviewed the record in accordance with Article 66, UCMJ. Upon such review, the findings and sentence are determined to be correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and the sentence, as approved below, are affirmed.

UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS Washington, D.C. UNITED STATES v. Steven J. MOLINARI Operations Specialist Third Class (E-4), U.S. Coast Guard CGCMS 24398 Docket No. 1309 2 September 2009 Special Court-Martial convened by Commanding Officer, USCGC GALLATIN (WHEC-721). Tried at Charleston, South Carolina, on 30 January 2008. Military Judge: CDR Sandra J. Selman, USCG Trial Counsel: LT Benedict S. Gullo, USCGR Assistant Trial Counsel: LT Neil J. Lawson, USCGR Defense Counsel: LCDR Fernette Moore, JAGC, USN Appellate Defense Counsel: CDR Necia L Chambliss, USCGR Appellate Government Counsel: LCDR Brian K. Koshulsky, USCG BEFORE MCCLELLAND, TOUSLEY & MCTAGUE Appellate Military Judges Per curiam: Appellant was tried by special court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of conspiracy, in violation of Article 81, Uniform Code of Military Justice (UCMJ); one specification of making a false official statement, in violation of Article 107, UCMJ; and one specification each of an indecent act and obstructing justice, in violation of Article 134, UCMJ. The military judge sentenced Appellant to confinement for three months, reduction to E-1, and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged, but suspended confinement in excess of forty-five days for six months, pursuant to the pretrial agreement.  United States v. Steven J. MOLINARI, No. 1309 (C.G.Ct.Crim.App. 2009) Before this court, without admitting that the findings and sentence are correct in law and fact, Appellant has submitted this case on its merits as to any and all errors. Decision We have reviewed the record in accordance with Article 66, UCMJ. Upon such review, the findings and sentence are determined to be correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and the sentence, as approved and partially suspended below, are affirmed. For the Court, Lane I. McClelland Chief Judge