United States v. Gogas

55 M.J. 521, 2001 CCA LEXIS 158, 2001 WL 629618
CourtUnited States Air Force Court of Criminal Appeals
DecidedMay 16, 2001
DocketACM 34210
StatusPublished
Cited by4 cases

This text of 55 M.J. 521 (United States v. Gogas) 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. Gogas, 55 M.J. 521, 2001 CCA LEXIS 158, 2001 WL 629618 (afcca 2001).

Opinion

OPINION OF THE COURT

BRESLIN, Judge:

The appellant was convicted in accordance with his pleas of wrongful use of lysergic acid diethylamide (LSD) on divers occasions and wrongful distribution of LSD, in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. The sentence .adjudged and approved included a bad-conduct discharge, confinement for 18 months, and reduction to E-l. The appellant raises several allegations of error. We affirm, but order administrative correction of the promulgating order.

Sentencing Evidence

On 27 January 2000, the appellant confessed to law enforcement authorities to using LSD unlawfully on about 20 occasions. Some of these uses were with other active-duty military members and some occurred in a dormitory on McChord Air Force Base (AFB). On one occasion, the appellant reported for duty still feeling the effects of no sleep after ingesting LSD. He also admitted wrongfully distributing LSD on one occasion to two other airmen.

During the sentencing portion of his trial, without objection, the prosecution introduced as evidence in aggravation a stipulation of fact between the prosecution and the defense describing the appellant’s offenses. The prosecution also introduced personnel records reflecting the appellant’s prior service. Among these records were the appellant’s performance reports, including his most recent referral report, reflecting a considerable list of disciplinary infractions and less-than-stellar duty performance. The prosecution introduced two separate records of nonjudicial punishment: one for possessing alcoholic beverages under age and another for failure to go to his place of duty. The prosecution also introduced three letters of reprimand for other minor disciplinary infractions. In addition to these personnel records, the prosecution offered a copy of a letter dated 11 May 2000 from the appellant to his congressman requesting assistance. It is this letter which forms the basis of this allegation of error.

The letter began with the appellant’s personal background. He openly admitted that he got mixed up with “the wrong group of people” and started “drinking alcohol and using LSD.” He recounted his “journey down the road to self-destruction,” and related it to his repeated failure to get to work on time and his other disciplinary infractions.

In the letter he also expressed anxiety about facing a general court-martial for his offenses, and challenged the legal basis for the charges. He admitted writing a statement confessing to his crimes, but said he felt “entrapped” by the agents who questioned him. He argued that the charges were not provable, since there was “only” the testimony of three other witnesses, and no physical evidence. He also complained that the criminal charges had hurt his “image at work,” that he was not being allowed to work on aircraft anymore, and that he had been ridiculed and harassed by others.

The trial defense counsel objected to the letter. Defense counsel argued that it was not admissible because it was not a matter in aggravation under Rule for Courts-Martial (R.C.M.) 1001(b)(4) or opinion evidence of rehabilitative potential under R.C.M. 1001(b)(5). He also contended its prejudicial effect outweighed its probative value under Mil.R.Evid. 403. The prosecutor conceded it was not evidence in aggravation but argued the appellant’s views in the letter about whether he should be prosecuted for his offenses was evidence of a lack of rehabilitative potential.

The military judge concluded that it was admissible as evidence in aggravation, because it related to the crimes in question, that it was relevant to the appellant’s rehabilitative potential, and that the probative value was not outweighed by the danger of unfair prejudice or confusion of the issues. However, the military judge was concerned about the appellant’s statement that he was “entrapped,” and allegations that he had been subjected to improper treatment before trial. The military judge re-opened the providence inquiry to address these issues. After [523]*523questioning, the appellant and trial defense counsel agreed that there were no issues of entrapment or unlawful pretrial punishment. The appellant explained that at the time he wrote the letter, he was unaware of the “technicalities” of the law, but that he had since conferred with his counsel and understood the concepts.

The appellant alleges the military judge erred in considering the letter to his congressman during the sentencing portion of the trial. We find no error.

The government may introduce evidence during the sentencing portion of the trial about the facts and circumstances surrounding the offenses. Such evidence is admissible under R.C.M. 1001(b)(4), as evidence in aggravation, since it is directly relating to the offenses. Although often presented through a stipulation of fact, it may also be presented through the testimony of witnesses, or through the accused’s own statements. United States v. Irwin, 42 M.J. 479, 481-82 (1995); United States v. Holt, 27 M.J. 57 (C.M.A.1988); United States v. Vickers, 13 M.J. 403, 406 (C.M.A.1982). As a practical matter, facts about the circumstances of the crime may have a bearing on the accused’s rehabilitative potential. A court may consider factual matters, such as the number of times the accused committed the crime, the deliberateness of it, the motivation behind it, and other circumstances, as evidence bearing on an accused’s potential for rehabilitation.

Evidence in aggravation may also include evidence of the impact of the accused’s offenses on the mission, discipline, or efficiency of the command immediately resulting from the appellant’s offenses. R.C.M. 1001(b)(4).

We review a military judge’s ruling on the admissibility of evidence for an abuse of discretion. United States v. Becker, 46 M.J. 141, 143 (1997); United States v. Johnson, 46 M.J. 8, 10 (1997). A military judge’s decision to admit evidence will not be overturned on appeal “absent a clear abuse of discretion.” United States v. Redmond, 21 M.J. 319, 326 (C.M.A.1986).

Reviewing the challenged letter, we find the first portion of the appellant’s letter was directly related to the offenses. In the letter, the appellant admitted his use of LSD and his motives for doing so. It also showed how the appellant’s drug abuse (coupled with alcohol abuse) directly impacted mission effectiveness, discipline and efficiency. Courts and lawmakers have long recognized that illegal drugs have an adverse impact on morale, discipline and military readiness. See generally Schlesinger v. Councilman, 420 U.S. 738, 760, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975); United States v. Trottier, 9 M.J. 337, 345-46 (C.M.A.1980). The appellant himself acknowledged the adverse impact that drugs had on his performance of his military duties. The facts contained in the letter, such as the appellant’s repeated use of illegal drugs, his desire to refrain from drug abuse, and his early difficulties in doing so, also related to the appellant’s rehabilitative potential. As such, the military judge was entirely correct that this statement was admissible as evidence in aggravation, and that it was relevant to the appellant’s potential for rehabilitation.

More problematic is the second portion of the statement, wherein the appellant seems to challenge the propriety of the anticipated court-martial.

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United States v. Sills
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Cite This Page — Counsel Stack

Bluebook (online)
55 M.J. 521, 2001 CCA LEXIS 158, 2001 WL 629618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gogas-afcca-2001.