United States v. Blough

57 M.J. 528, 2002 CCA LEXIS 144, 2002 WL 1757683
CourtUnited States Air Force Court of Criminal Appeals
DecidedJune 28, 2002
DocketACM S30038
StatusPublished
Cited by2 cases

This text of 57 M.J. 528 (United States v. Blough) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Blough, 57 M.J. 528, 2002 CCA LEXIS 144, 2002 WL 1757683 (afcca 2002).

Opinion

OPINION OF THE COURT

BRESLIN, Senior Judge:

The appellant was convicted, in accordance with his pleas, of one specification of disobeying a lawful order on divers occasions, in violation of Article 92, UCMJ, 10 U.S.C. § 892. He was also convicted, contrary to his pleas, of one specification of carnal knowledge on divers occasions, in violation of Article 120, UCMJ, 10 U.S.C. § 920, and one specification of wrongfully harboring a runaway knowing she was sought by law enforcement authorities, in violation of Article 134, UCMJ, 10 U.S.C. § 934. The sentence adjudged and approved was a bad-conduct discharge, hard labor without confinement for 30 days, restriction for 30 days, forfeiture of $650.00 pay per month for 1 month, and reduction to E-l.

The appellant now contends the military judge erred by refusing to instruct the members about specific evidentiary matters the members should have considered during deliberations on sentence, to the prejudice of appellant. He also contends the military judge committed plain error by failing to instruct the members, sua sponte, that the appellant’s guilty plea could be considered as a matter in mitigation. We find no error that materially affects the appellant’s substantial rights, and affirm.

At the time relevant to this case, the appellant was 19 years old, and relatively new to the Air Force. He was assigned as an aircraft crew chief, and stationed at Grand Forks Air Force Base, North Dakota. In about May 2000, he met the victim, a female then 15 years old. Shortly thereafter, she spent the weekend with the appellant in his dormitory room, where they engaged in sexual intercourse. The victim’s parents learned of this, and complained to Air Force officials. The appellant’s superintendent gave him an order, orally and in writing, to stay away from this 15 year-old girl.

The appellant left Grand Forks AFB on temporary duty for a month; upon his return he made arrangements to meet the victim again. They began a romantic relationship, including sexual intercourse. The appellant even drove the victim to a clinic to obtain [530]*530birth control pills. The appellant continued the relationship, notwithstanding his friends’ repeated warnings that what he was doing was wrong and could have serious consequences.

On 9 April 2001, after an argument with her stepfather, the victim called the appellant and asked him to pick her up from school. The appellant took her to his off-base apartment, and let her stay there for several days instead of going home. Both the victim’s mother and the local police contacted the appellant while looking for the victim, but he lied to them, saying he did not know where she was. After about two weeks, the police issued a news release listing the victim as a missing person. Upon learning of the publicity, the victim returned home. Agents from the Air Force Office of Special Investigations (AFOSI) interviewed the appellant, who confessed.

At trial, the appellant entered a provident guilty plea to disobeying a lawful order to stay away from the victim. He pled not guilty to the charges of carnal knowledge and harboring a runaway. The prosecution called numerous witnesses to prove the later offenses. The appellant testified under oath and admitted that he had sexual intercourse with the victim knowing that she was only 15 years old, and that he harbored her knowing she was sought by law enforcement. Not surprisingly, the court members found the appellant guilty of the charged offenses.

Wheeler Instruction

During the sentencing proceedings, the defense presented evidence of the appellant’s background, character, duty performance, and other matters in extenuation and mitigation. Citing United States v. Wheeler, 38 C.M.R. 72, 1967 WL 4375 (C.M.A.1967), trial defense counsel asked the military judge to instruct the members in detail of specific evidentiary matters the members could consider during the sentencing deliberations, including the appellant’s age, his performance report, lack of previous convictions or nonjudicial punishment, the appellant’s character as reflected in Defense Exhibits A through 0 and in the testimony of a defense witness, and the appellant’s expressed desire to remain in the Air Force. The military judge declined, indicating his intention to instruct in the manner described in United States v. Hopkins, 55 M.J. 546, 550 (A.F.Ct.Crim.App. 2001), aff'd, 56 M.J. 393 (2002). The military judge indicated that he would leave it up to defense counsel to argue what he believed were matters in extenuation and mitigation. Thereafter, the military judge instructed the members:

In determining a sentence, you should consider all the facts and circumstances of the offenses of which the accused has been convicted and all matters concerning the accused whether presented before or after the findings. Thus, you should consider the accused’s background, his character, all matters in extenuation and mitigation, and any other evidence that he presented. In this phase of the trial you may consider all of the evidence presented including the nature of the relationship. As you recall, during the findings phase I restricted the manner in which you could consider the nature of the relationship. In this phase you can consider the nature of the relationship in any manner you deem appropriate. You should also consider any matters in aggravation.

The appellant did not request an instruction that a guilty plea is a matter in mitigation, and the military judge did not provide the instruction sua sponte. At the conclusion of the instruction, both counsel indicated they had no objection to the instructions given, or any request for further instruction. During his argument on sentencing, trial defense counsel stressed the appellant’s age, his character and duty performance as reflected by the character statements, his desire to remain in the Air Force, the adverse consequences of the conviction (including the possibility that he would have to register as a sex offender), the possible effects of a bad conduct discharge, and the appellant’s voluntary assistance to the AFOSI.

The appellant now argues that the military judge committed prejudicial error in refusing the defense-requested instruction detailing the evidence to be considered in extenuation and mitigation. The appellant maintains that the decision of our superior court in Wheeler, 38 C.M.R. at 75, requires the military judge [531]*531to “tailor his instructions on the sentence to the law and the evidence,” and that the military judge’s refusal to do so was error. The government contends that the military judge’s instructions were sufficient under both Wheeler and Rule for Courts-Martial (R.C.M.) 1005(e)(5).

In analyzing this issue, it is helpful to study Wheeler closely, and to review the history and development of the law relating to sentencing instructions regarding the court member’s consideration of extenuating and mitigating factors. Congress enacted the Uniform Code of Military Justice in 1950. Article 36, UCMJ, 10 U.S.C. § 836, delegated to the President the authority to prescribe uniform procedural rules for courts-martial.

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Related

United States v. Williams
Air Force Court of Criminal Appeals, 2014
United States v. Griggs
59 M.J. 712 (Air Force Court of Criminal Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
57 M.J. 528, 2002 CCA LEXIS 144, 2002 WL 1757683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-blough-afcca-2002.