United States v. Sergeant First Class COREY L. HOUSTON ( 2014 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    COOK, CAMPANELLA, and HAIGHT
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Sergeant First Class COREY L. HOUSTON
    United States Army, Appellant
    ARMY 20120991
    United States Army Intelligence Center of Excellence and Fort Huachuca
    Timothy P. Hayes, Jr., Military Judge
    Timothy J. Cody, Staff Judge Advocate
    For Appellant: Colonel Kevin Boyle, JA; Major Vincent T. Shuler, JA; Captain
    Brian D. Andes, JA (on brief).
    For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
    Captain Sean P. Fitzgibbon, JA (on brief).
    10 December 2014
    ----------------------------------
    MEMORANDUM OPINION
    ----------------------------------
    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
    CAMPANELLA, Judge:
    A military judge sitting as a special court-martial convicted appellant,
    pursuant to his pleas, of two specifications of failure to obey a lawful general
    regulation, three specifications of false official statement, one specification of
    indecent act, and one specification of adultery in violation of Articles 92, 107, 120,
    and 134 of the Uniform Code of Military Justice, 
    10 U.S.C. §§ 89
     2, 907, 920 and
    934 (2006 & Supp. IV) [hereinafter UCMJ]. Contrary to pleas, the military judge
    found appellant guilty of another specification of violating a lawful general order , in
    HOUSTON—ARMY 20120991
    violation of Article 92, UCMJ. 1 The convening authority approved the adjudged
    sentence of a bad-conduct discharge and confinement for eight months. 2
    This case is before us for review pursuant to Article 66, UCMJ. Appellant
    raises two assignments of error, neither of which merit relief. Appellant personally
    raises four additional issues pursuant to United States v. Grostefon, 
    12 M.J. 431
    (C.M.A. 1982), one of which merits discussion and relief.
    BACKGROUND
    At the time of his offenses, appellant was an acting First Sergeant in an
    Advanced Individual Training (AIT) unit, A Company, at Fort Huachuca. While
    serving in this capacity, appellant was engaged in prohibited relationships with
    several female trainees. An AIT platoon sergeant in appellant’s unit, SFC RL, was
    also involved in an inappropriate relationship with a trainee, Private First Class
    (PFC) ST.
    Appellant and SFC RL planned an illicit outing to Phoenix, Arizona in order
    to attend a concert with two trainees, PFC ST and PFC CC. To facilitate their trip,
    appellant needed to get PFC ST out of Friday unit training that PFC ST was
    conducting with B Company. 3 To that end, appellant sent a “blanket e-mail” to his
    company commander, Captain (CPT) PS, and B Company’s first sergeant, 1SG TC,
    falsely stating that PFC ST needed a weekend pass so that she could meet with her
    mother to do legal and financial paperwork—indicating that it was business that
    could only be accomplished during a weekday. Private First Class ST’s chain of
    command believed the pretense, and she was granted the weekend pass.
    Appellant was charged, inter alia, with three specifications of false official
    statement, in violation of Article 107, UCMJ. At trial, appellant entered pleas of
    guilty to all three specifications. The military judge then proc eeded to question
    appellant on his pleas.
    According to appellant, one false official statement (Specification 2)
    encompassed a lie made verbally to SFC SV, an A Company AIT training non-
    commissioned officer, after SFC SV approached appellant to ask about the email she
    had seen stating PFC ST needed a weekend pass. Sergeant First Class SV was not an
    1
    Appellant was acquitted of one specification of obstruction of justice and one
    specification of adultery.
    2
    The convening authority deferred automatic forfeitures until action, and at actio n,
    waived automatic forfeitures for six additional months for the benefit of appellant’s
    spouse.
    3
    At the time of this misconduct by appellant, PFC ST was assigned to A Company
    for administrative purposes, but was completing certain portions of her training with
    B Company.
    2
    HOUSTON—ARMY 20120991
    addressee on the e-mail sent by appellant, but had evidently “got[ten] wind” of it
    from someone in B Company.
    Two other specifications (1 and 3) of the false official statement charge arose
    out of the same “blanket e-mail” sent to both CPT PS and 1SG TC. During the
    providence inquiry, the military judge engaged in the following colloquy with
    appellant:
    MJ: [T]ell me . . . why you’re guilty of the offense listed
    in Specification 1 of Charge II . . . .
    ACC: On 1 July, sir, not on 20 July--only on 1 July, I sent
    out a blanket e-mail requesting that [PFC ST] be released
    from training to attend a meeting with her mother, which I
    knew to be false.
    MJ: So this e-mail that you sent on 1 July, was one of the
    recipients [CPT PS]?
    ACC: Yes, sir.
    ....
    MJ: [P]lease look at Specification 3 of Charge II. . . .
    The elements of that offense, false official statement, are
    the same as the previous two specifications. . . . [T]he
    only differences are the date alleged, the person alleged
    that you made the statement to, and the substance of the
    statement.
    ....
    MJ: [D]o you have any questions about the elements or the
    definitions?
    ACC: Just the date, sir. It would have been the same date;
    the 1 July because it was one blanket e-mail. 4
    ....
    MJ: So you believe that this false official statement was
    the same e-mail sent to [CPT PS]; it was just also sent to
    [1SG TC]?
    ACC: Yes, I do, sir.
    4
    Specification 3 of Charge II listed the date of the offense as “on or about 11 July
    2011.”
    3
    HOUSTON—ARMY 20120991
    MJ: Okay. And do you recall putting both of them on the
    “to list” for your message?
    ACC: Yes, sir.
    Based on the appellant’s responses, the military judge accepted appellant’s
    plea as provident for all three specifications of false official statements.
    DISCUSSION
    Unreasonable Multiplication of Charges
    “What is substantially one transaction should not be made the basis for an
    unreasonable multiplication of charges against one person.” Rule for Courts –Martial
    307(c)(4). The prohibition against unreasonable multiplication of charges
    “addresses those features of military law that increase the potential for overreaching
    in the exercise of prosecutorial discretion.” United States v. Campbell, 
    71 M.J. 19
    ,
    23 (C.A.A.F. 2012) (quoting United States v. Quiroz, 
    55 M.J. 334
    , 337 (C.A.A.F.
    2001)). In Quiroz, our superior court listed five factors to guide our analysis of
    whether charges have been unreasonably multiplied:
    (1) Did the accused object at trial that there was an
    unreasonable multiplication of charges and/or
    specifications?;
    (2) Is each charge and specification aimed at distinctly
    separate criminal acts?;
    (3) Does the number of charges and specifications
    misrepresent or exaggerate the appellant’s criminality?;
    (4) Does the number of charges and specifications
    [unreasonably] increase the appellant’s punitive
    exposure?; and
    (5) Is there any evidence of prosecutorial overreaching or
    abuse in the drafting of the charges?
    55 M.J. at 338–39 (internal quotation marks omitted).
    In this case, the record reflects that two of appellant’s convictions for making
    false official statements arose from the same criminal act—one “blanket email” sent
    to two recipients. Under the facts of this case, we find the unit of prosecution is the
    number of false official statements made, not the number of recipients. Application
    of the Quiroz factors to the evidence elicited during the colloquy requires the
    consolidation of the particulars in Specifications 1 and 3 of Charge II. We will,
    4
    HOUSTON—ARMY 20120991
    therefore, merge the two specifications to comport with the evidence elicited during
    the providence inquiry.
    CONCLUSION
    Specifications 1 and 3 of Charge II are consolidated into a single amended
    Specification, to read as follows:
    In that Sergeant First Class Corey L. Houston, U.S. Army,
    at or near Fort Huachuca, Arizona, between on or about 1
    July 2011 and on or about 20 July 2011, with intent to
    deceive, make to Captain P.S. and First Sergeant T.C., an
    official statement, to wit: “Private First Class S.T. had a
    family emergency and had to meet her mother in Tucson
    the weekend of 15 July 2011 to deal with legal an d
    financial transactions and therefore need ed a weekend
    pass” or words to that effect, which statement was totally
    false, and then known by said Sergeant First Class Corey
    L. Houston to be so false.
    The finding of guilty to Specification 3 of Charg e II is set aside and that
    specification is DISMISSED. The finding of guilty to Specification 1 of Charge II,
    as so amended, is AFFIRMED.
    The remaining findings of guilty are AFFIRMED.
    We are able to reassess the sentence on the basis of the error noted a nd 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). In evaluating the Winckelmann
    factors, we first find no dramatic change in the penalty landscape that might cause
    us pause in reassessing appellant’s sentence. Appellant was tried and sentenced at a
    special court-martial by a military judge. The nature of the remaining offenses, as
    modified, still captures the gravamen of the original offenses and the circumstances
    surrounding appellant’s conduct. Finally, based on our experience, we are familiar
    with the remaining offenses so that we may reliably determine what sentence would
    have been imposed at trial. We are confident that based on the entire record and
    appellant’s course of conduct, the military judge sitting alone as a special court-
    martial, would have imposed a sentence of at least eight months confinement and a
    bad-conduct discharge.
    Reassessing the sentence based on the noted error and the remaining findings
    of guilty, we AFFIRM the sentence as adjudged. 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.
    5
    HOUSTON—ARMY 20120991
    Senior Judge COOK and Judge HAIGHT concur.
    FOR
    FORTHE
    THECOURT:
    COURT:
    MALCOLM H. SQUIRES, JR.
    MALCOLM H. SQUIRES, JR.
    Clerk of Court
    Clerk of Court
    6
    

Document Info

Docket Number: ARMY 20120991

Filed Date: 12/10/2014

Precedential Status: Non-Precedential

Modified Date: 4/17/2021