United States v. Private E1 HUNTER J. ISRAEL ( 2015 )

                                HAIGHT, PENLAND, and WOLFE
                                   Appellate Military Judges
                                UNITED STATES, Appellee
                              Private E1 HUNTER J. ISRAEL
                               United States Army, Appellant
                                       ARMY 20131054
                                Headquarters, Fort Carson
                            Timothy Grammel, Military Judge
             Lieutenant Colonel Stephanie D. Sanderson, Staff Judge Advocate
    For Appellant: Captain Payum Doroodian, JA; Mr. Gregory M. Gagne (on brief).
    For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie III, JA; Major
    Daniel D. Derner, JA; Captain Samuel E. Landes, JA (on brief).
                                      18 December 2015
                                    OPINION OF THE COURT
    WOLFE, Judge:
           A general court-martial composed of officer and enlisted members convicted
    appellant, contrary to his pleas, of two specifications of making a false official
    statement, one specification of sodomy with a child between the ages of 12 and 16
    years, and two specifications of obstruction of justice, in violation of Articles 107,
    125, and 134, 10 U.S.C. §§ 907, 925 and 934 (2006; 2012) [hereinafter UCMJ]. 1
    The panel sentenced appellant to a dishonorable discharge, confinement for ten
    years, and forfeiture of all pay and allowances. The convening authority approved
    the adjudged sentence.
     Appellant was acquitted of one specification of providing alcohol to a minor in
    violation of Article 134, UCMJ.
    ISRAEL—ARMY 20131054
           This case is before us pursuant to Article 66, UCMJ. Appellant raises four
    assignments of error, none of which merits detailed discussion or relief. 2 Appellant
    raises several matters under United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982),
    one of which merits discussion and relief. Additionally, we identify one issue that
    warrants discussion, but not relief.
          In 2011 Miss KLM, a twelve-year-old girl, lived in the same apartment
    complex as appellant in Colorado Springs. Miss KLM alleged a sexual relationship
    with appellant that involved her performing oral sex on him on multiple occasions.
    When questioned by the Criminal Investigation Command (CID) while deployed to
    Afghanistan in the summer of 2012, appellant admitted one instance of oral sex with
    Miss KLM that occurred at his residence in late May of 2011. When asked whether
    he knew how old she was, appellant responded “I thought she was 14, I knew she
    was a minor.” When asked to explain what Miss KLM looks like, appellant
    responded with a detailed estimation as to her breast size, height, weight, and
    manner of dress.
           Shortly thereafter, appellant returned to the United States from Afghanistan
    and was again interviewed by CID. Appellant consented to CID’s review of his
    laptop and provided a laptop for CID’s examination that he claimed was his own. A
    few weeks later, appellant’s girlfriend called CID stating that the laptop was in fact
    hers. She further stated that appellant had instructed her to hide the hard drive of
    appellant’s laptop in the apartment of Ms. Tammy Kohn, appellant’s neighbor. 3
    Agents from CID searched Ms. Tammy Kohn’s apartment and found appellant’s hard
      The court-martial found appellant guilty of sodomy with a child under the age of
    16 years with exceptions and substitutions. The court-martial excepted out the
    language “between on or about 1 October 2011 and on or about 18 March 2012, on
    divers occasions.” Consistent with our superior court’s decision in United States v.
    58 M.J. 391
     (C.A.A.F. 2003), the military judge properly instructed the
    panel to specify the factual basis for the guilty finding. In accordance with the
    military judge’s instructions, the panel substituted in the language “on or about May
    2011, on one occasion in his residence.” In his brief to this court, appellant stated
    that “[i]t is fairly obvious that the panel based its findings solely on appellant’s
    sworn statement” which admitted sodomy with Miss KLM in May of 2011. We agree
    and therefore find we are fully able to perform our responsibilities under Article 66,
    UCMJ. We similarly agree with the military judge that the variance of just over four
    months was not fatal.
      Ms. Kohn was not unknown to CID. During the course of the investigation she
    identified herself as an attorney representing appellant and provided CID with an
    audio recording which contained a purported recantation of Miss KLM’s allegations
    against appellant. At trial, both parties conceded that Ms. Kohn was not an attorney.
    ISRAEL—ARMY 20131054
    drive and cell phone in the specific location where appellant’s girlfriend had stated
    they would be located. A forensic review of the media identified revealing and
    suggestive photos of Miss KLM in various stages of undress and nudity.
    Additionally, the examination revealed various messages between Miss KLM and
    appellant, some of a sexually suggestive nature.
          Appellant was again questioned by CID. He denied any contact with Miss
    KLM and stated he did not know how his property ended up in Ms. Kohn’s
                      a. Specific Request for a Dishonorable Discharge
           Appellant’s trial defense counsel during his sentencing argument to the panel
    specifically requested that appellant receive a dishonorable discharge, stating:
                 [W]e are going to ask for a dishonorable discharge
                 because Private Israel doesn’t deserve to be in the military
                 anymore. It’s pretty obvious -- that’s clear. He knows it.
                 He accepts it. . . . He wants that dishonorable discharge.
                 The fact that he acknowledges that he deserves a
                 dishonorable discharge is a sign of rehabilitative potential
                 and it is a sign that he does not need a long and lengthy
                 confinement sentence to learn that lesson.
           In a detailed colloquy with the military judge following his sentencing
    argument on behalf of appellant, counsel stated that it was a tactical decision to
    request a dishonorable discharge. Appellant concurred and stated that he had agreed
    to his counsel’s argument.
           The Military Judge’s Benchbook states that requesting a dishonorable
    discharge in a sentencing argument is prohibited. See Dep’t of Army, Pam. 27-9,
    Legal Services: Military Judges’ Benchbook [hereinafter Benchbook], para. 2-7-27
    n.1 (1 Jan. 2010). (“It is improper for defense counsel to argue for a discharge or
    dismissal against the client’s desires and if a dishonorable discharge is possible, the
    defense counsel may only argue for a bad-conduct discharge”). However, we find
    that in a case such as this, where an accused specifically consents to such an
    argument, the trial defense counsel who makes the tactical decision to request a
    dishonorable discharge commits no error. See United States v. Weatherford, 19
    U.S.C.M.A. 424, 425, 
    42 C.M.R. 26
    , 27 (1970) (As part of his right to address the
    sentencing authority, an accused “may ask for one kind of punishment to the
    exclusion of other permissible penalties”); United States v. Bouteiller, 
    44 C.M.R. 695
    , 696 (A.C.M.R. 1971) (Advocacy for punitive discharge is improper unless “the
    accused desires a dishonorable or bad-conduct discharge”) (emphasis added). Of
    ISRAEL—ARMY 20131054
    course, as in this case, a defense counsel who intends to ask for any punitive
    discharge must “make a record that such advocacy is pursuant to the accused’s
    wishes.” United States v. Dresen, 
    40 M.J. 462
    , 465 (C.M.A. 1994) (citing United
    States v. Lyons, 
    36 M.J. 425
     (C.M.A. 1993)); see United States v. Quick, 
    59 M.J. 383
    , 385-86 (C.A.A.F. 2004).
           This case is distinguishable from those cases where appellant consented to an
    argument for a discharge generally, but did not specifically consent to an argument
    for a dishonorable discharge. See e.g. United States v. McMillan, 
    42 C.M.R. 601
    (A.C.M.R. 1970); United States v. Shields, 
    40 C.M.R. 844
     (A.B.R. 1969). Our
    review of precedent fails to reveal any case in which a court determined that it was
    improper for a defense counsel to argue for a dishonorable discharge in accordance
    with the specific desires of the accused. Moreover, when an accused expresses to
    his counsel the specific desire that his counsel argue for a dishonorable discharge,
    for this court to nonetheless prohibit such an argument would be to substitute our
    tactical judgment for that of an accused and his counsel. 4
           Accordingly, if a dishonorable discharge is an authorized sentence, a defense
    counsel may argue for a dishonorable discharge provided that the accused
    specifically consents to such an argument.
                  b. Unreasonable Multiplication of Charges for Findings
           Appellant was convicted of two violations of Article 107, UCMJ, for making
    false statements to CID. Both statements arose out of a single interview. At trial,
    the proof regarding the two statements was provided in a single narrative answer
    without any attempt to distinguish that the statements were made at different times
    during the interview or with different purposes of deception. See United States v.
    44 M.J. 739
     (Army Ct. Crim. App. 1996); see generally United States v.
    55 M.J. 334
     (C.A.A.F. 2001). Although the military judge merged the
    specifications for sentencing, in exercising our duty to approve only those findings
      However, Judge Ferguson, in his dissent to Weatherford, argued exactly for such a
    result. Weatherford, 19 U.S.C.M.A. 427-28, 42 C.M.R. at 29-30 (“I do not believe
    that there is ever an ‘appropriate case’ where a defense counsel may urge the court
    to impose a punitive discharge upon his client, even when the argument is designed
    to persuade the court not to sentence the accused to a period of confinement.” Judge
    Ferguson further argued that even though “the accused requested and even demanded
    that his counsel argue for his punitive separation” that this factor, was in his
    opinion, “a difference without a distinction.”) (Ferguson, J., dissenting).
    ISRAEL—ARMY 20131054
    that “should be approved” under Article 66(c), 5 we will merge the two specifications
    for findings, and provide relief in our decretal paragraph.
         Specifications 1 and 2 of Charge I are consolidated into a single specification,
    numbered Specification 1 of Charge I, to read as follows:
                 In that Private E1 Hunter J. Israel, U.S. Army, did, at or
                 near Fort Carson, Colorado, on or about 21 August 2012,
                 with intent to deceive, make to Special Agent E.L.H., an
                 official statement, to wit: “I never had sexual contact with
                 Ms. K.L.M” and “I do not know how Ms. T.K. came into
                 possession of my laptop hard drive or my cell phone,” or
                 words to that effect, which was totally false, and was then
                 known by the said accused to be so false.
           The finding of guilty of Specification 1 of Charge I, as so amended, is
    AFFIRMED. The finding of guilty to Specification 2 of Charge I is set aside and
    that specification is DISMISSED. The remaining findings of guilty are
           Reassessing the sentence on the basis of the entire record, and applying the
    principles of United States v. Sales, 
    22 M.J. 305
    , 308 (C.M.A. 1986) and the factors
    set forth in United States v. Winckelmann, 
    73 M.J. 11
    , 15–16 (C.A.A.F. 2013), we
    are confident the panel would have adjudged the same sentence. The military judge,
    in merging the specifications of Charge I for sentencing, removed any taint that may
    have prejudiced appellant. All rights, privileges, and property, of which appellant
    has been deprived by virtue of that portion of the findings set aside by this decision
    are ordered restored.
          Senior Judge HAIGHT and Judge PENLAND concur.
                                          FOR THE
                                            FOR   COURT:
                                                THE COURT:
                                          JOHN P. TAITT
                                             JOHN P. TAITT.
                                          Acting Clerk of Court
                                             Acting Clerk of Court
      We note that this issue was forfeited at trial, and we do not find error on the part of
    the military judge. See United States v. Butcher, 
    56 M.J. 87
    , 93 (C.A.A.F. 2001).
    We therefore reach this matter only because of our “highly discretionary power”
    under Article 66(c). Id.

Document Info

DocketNumber: ARMY 20131054

Filed Date: 12/18/2015

Precedential Status: Precedential

Modified Date: 1/4/2016