United States v. Cunningham

27 M.J. 899, 1989 CMR LEXIS 30, 1989 WL 4204
CourtU S Coast Guard Court of Military Review
DecidedJanuary 13, 1989
DocketCGCM 0018; Docket No. 918
StatusPublished
Cited by3 cases

This text of 27 M.J. 899 (United States v. Cunningham) is published on Counsel Stack Legal Research, covering U S Coast Guard Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cunningham, 27 M.J. 899, 1989 CMR LEXIS 30, 1989 WL 4204 (cgcomilrev 1989).

Opinion

BAUM, Chief Judge:

Appellant, pursuant to a pretrial agreement, pled guilty to various offenses stemming from actions he took while Engineering Petty Officer and Contracting Officer representative aboard a U.S. Coast Guard Cutter undergoing repairs at a private shipyard.1 After conviction, he was sentenced by the military judge to a bad conduct discharge, confinement for 18 months, forfeiture of all pay and allowances and reduction to E-l, which the convening authority approved and suspended in part. Appellant has assigned two errors before this Court, that the sentence is disproportion[901]*901ately severe and that the convening authority’s action exceeded the pretrial agreement’s sentence limitation.

The record reveals that appellant solicited and obtained a $10,000.00 “loan” from the shipyard company after submitting a false procurement request to the Eighth Coast Guard District project engineer to get additional unneeded ship repairs approved and funds of $12,000.00 obligated for those repairs. Such was done by appellant with a view to later falsifying documents indicating completion of repairs so that the shipyard company would be paid $12,000.00 for work not accomplished. All of this was done as incentive for the company to issue appellant the “loan” check in the amount of $10,000.00.

Appellant now contends that his sentence for these actions is disproportionately severe. As part of this first assignment of error, appellant asks us to take judicial notice of the “crimes and sentence” of a particular Coast Guard flag officer and consider them in assessing whether or not appellant’s sentence was appropriate. In support, thereof, appellant offers a copy of a newspaper article concerning non-judicial punishment imposed in 1988 on that Coast Guard Rear Admiral. While we have, on occasion, taken judicial notice of facts not subject to reasonable dispute that are either generally known or capable of accurate and ready determination by resort to unquestioned sources, such sources are not normally newspaper accounts. For that reason, we do not view with favor the submission of newspaper articles of the kind attached to the defense brief as matters for this Court to consider in its review. For the purpose of our decision, however, the essence of the events depicted in the newspaper article have been widely disseminated throughout the Coast Guard and, in fact, were the subject of a “PAO Gram” distributed by the Coast Guard Headquarters Public Affairs Division on 16 June 1988. Accordingly, we will treat the newspaper article submitted as an accurate account for purposes of our decision, particularly since the complete and precise details of the admiral’s conduct and the actions taken thereon are not essential to our determination.

According to the article, the admiral received as non-judicial punishment a $5,000.00 fine and a reprimand for conduct unbecoming an officer and dereliction of duties. The article went on to say that the admiral had been accused of misusing personnel and resources for personal benefit, traveling at government expense for personal reasons and attempting to interfere with a witness to an investigation. Restitution was said to have been made for “the monies he cost the government,” believed to be between $2,000.00 and $3,000.00. In further elaboration of the admiral’s status, the article indicated that he was Commander of the Eighth Coast Guard District when charges were made and was due to receive his second star, but that he had been removed from the two-star list and was to retire immediately with a loss in retirement benefits of more than $6,000.00 a year for life. We note that the admiral, as Eighth District Commander, was the convening authority who referred appellant’s charges to trial. Appellant does not contend, however, that under the accuser concept this officer was, somehow, disqualified from acting as convening authority because of his own offenses, nor do we find such disqualification apparent from what has been presented to us. Instead, appellant argues that his crimes and punishment should be compared with those of the admiral and, upon such comparison, appellant’s punishment should be deemed disproportionately severe.

The general rule is that appropriateness of an accused’s sentence is to be determined without reference or comparison to sentences in other cases. An exception to this general rule arises when there are other closely related cases with highly disparate sentences. United States v. Olinger, 12 M.J. 458 (CMA 1982). As the government points out “there is no case and no sentence with which he [appellant] wants to compare ... But even if the ... nonjudicial proceedings were to be considered a ‘case and sentence,’ there is no direct correlation between the two individu[902]*902ais and their offenses.” (Appellate Government Counsel Brief at 6). We agree. While there may be those within and without the Coast Guard who debate the appropriateness of the non-judicial punishment action referred to, we see absolutely no basis for comparison of such non-judicial punishment with the court-martial conviction and sentence before us. It is simply not a closely related case that warrants comparison. As a separate matter, we also agree with government counsel’s contention that selective prosecution or abuse of prosecutorial discretion with respect to appellant has not been established concerning the manner in which the admiral’s offenses were resolved. In light of our disposition of these contentions, we have independently assessed the appellant’s punishment based solely on the offenses committed by him and the matters presented in extenuation and mitigation, without comparison to the admiral’s offenses and punishment. In so doing, we find no merit to appellant’s first assignment of error.

In his second assignment of error, appellant challenges the convening authority’s action as exceeding the sentence limits imposed by the pretrial agreement. That agreement’s sentence provision simply provided as follows:

In consideration of those agreements and promises set forth in the foregoing four (4) pages, the Convening Authority agrees that he will Suspend any sentence of confinement adjudged for a period of one (1) year in accordance with the terms of suspension set forth in enclosure (3).

Appellate Exhibit V

This aspect of the agreement undoubtedly could have been made more definite and certain by explicit statements of what limitations, if any, existed concerning other sentence elements, or a statement of what sentence could be approved by the convening authority. We strongly recommend such statements in pretrial agreements to avoid confusion in this area on review. Despite the absence of such provisions, however, and despite egregious shortcomings in the treatment of this matter at trial by the judge and both counsel, we believe that the intent and understanding of the parties may be discerned from matters of record. We do not agree with appellant that any time there is possible ambiguity with respect to a pretrial agreement that it must be resolved in a manner most favorable to the accused. When there is evidence of record establishing the clear understanding of the parties, we believe that understanding should prevail. See, United States v. Llewellyn, 27 M.J. 825 (CGCMR 1989). The view in Llewellyn, supra, and here is that our responsibility is to look at the entire record when considering such matters and to resolve the questions in a manner that does not fly in the face of reason.

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United States v. Bayle
56 M.J. 762 (U S Coast Guard Court of Criminal Appeals, 2002)
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28 M.J. 556 (U S Coast Guard Court of Military Review, 1989)

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Bluebook (online)
27 M.J. 899, 1989 CMR LEXIS 30, 1989 WL 4204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cunningham-cgcomilrev-1989.