United States v. HAJJ MOUSSADEK

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: February 14, 2025
• Docket: 202400130
• Status: Published

Opinion

This opinion is subject to administrative correction before final disposition.

Before DALY, GROSS, and SLABBEKORN Appellate Military Judges

_________________________

UNITED STATES Appellee

v.

Yassine HAJJI MOUSSADEK Seaman Apprentice (E-2), U.S. Navy Appellant

No. 202400130

Decided: 14 February 2025

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges: Derek D. Butler (arraignment) Courtney E. Lewis (trial)

Sentence adjudged 19 January 2024 by a special court-martial tried at Naval Station Great Lakes, Illinois, consisting of a military judge sit- ting alone. Sentence in the Entry of Judgment: confinement for 65 days and a bad-conduct discharge.

For Appellant: Major Joshua P. Keefe, USMC

For Appellee: Lieutenant Erin H. Bourneuf, JAGC, USN United States v. Hajji Moussadek, NMCCA No. 202400130 Opinion of the Court

This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2(b).

PER CURIAM: Appellant was found guilty in accordance with his pleas of one specification of unauthorized absence in violation of Article 86, Uniform Code of Military Justice 1 (Charge I, Sole Specification), and one specification of violating a law- ful general order in violation of Article 92, Uniform Code of Military Justice (Charge III, Specification 2). 2 On appeal, Appellant raises one assignment of error claiming that the En- try of Judgment (EOJ) does not comply with Rule for Courts-Martial (R.C.M.) 1111(b)(1)(A) because it does not correctly summarize Charge III, Specification 2 referred to trial. In response, the Government concedes that the military judge erred in summarizing Charge III Specification 2 in the EOJ. Having considered the briefs of the parties and the record of trial, we find merit in Appellant’s assignment of error and take action in our decretal para- graph. After convicting Appellant, in accordance with his pleas, the military judge entered judgment pursuant to R.C.M. 1111(b). In so doing, the military judge listed the pleas and findings to Charge III, Specification 2 as follows: Charge III – VUCMJ Article 92 Violation of a lawful general or- der. Specification 2 – On or about 9 November 2023. Plea: Guilty. Finding: Guilty We recently set forth the requirement for EOJs when listing the summary of each charge and specification, holding that to be sufficient the EOJ must include: 1) as already required, the Article of the UCMJ for each charge;

1 10 U.S.C. § 886.

2 10 U.S.C. § 892.

2 United States v. Hajji Moussadek, NMCCA No. 202400130 Opinion of the Court

2) for each specification, any subsection, if applicable; 3) the nature of the offense in the specification; and, 4) the date of the offense. 3 Here, the EOJ fails to meet these requirements as the summary of Charge III, Specification 2 fails to correctly list the nature of the offense in the specifi- cation, including the omission of the specific order that Appellant violated. We therefore will modify the EOJ. Appellant alleges no prejudice and we find none. However, Appellant is en- titled to have court-martial records that correctly reflect the content of his pro- ceeding. 4 In accordance with R.C.M. 1111(c)(2), we modify the EOJ and direct that it be included in the record. Upon modification of the EOJ, and after care- ful consideration of the record and briefs of appellate counsel, we have deter- mined that the findings are correct in law and the sentence is correct in law and fact and that no error materially prejudicial to the Appellant’s substantial rights occurred. 5 The findings and sentence are AFFIRMED.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

3 United States v. Wadaa, 84 M.J. 652, 655 (N-M. Ct. Crim. App. 2024).

4 United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).

5 Articles 59 & 66, UCMJ.

3 UNITED STATES NMCCA NO. 202400130

v. ENTRY OF Yassine HAJJI MOUSSADEK JUDGMENT Seaman Apprentice (E-2) U.S. Navy As Modified on Appeal Accused 14 February 2025

On 19 January 2024, the Accused was tried at Naval Station Great Lakes, Illinois, by a special court-martial, consisting of a military judge sitting alone. Military Judge Courtney E. Lewis presided.

FINDINGS

The following are the Accused’s pleas and the Court’s findings to all offenses the convening authority referred to trial:

Charge I: Violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. Plea: Guilty. Finding: Guilty.

Specification (Absence Without Leave):

Did, on or about 8 October 2023, absent himself from his place of duty and did remain so absent until on or about 8 November 2023. Plea: Guilty. Finding: Guilty. United States v. Hajji Moussadek, NMCCA No. 202400130 Modified Entry of Judgment

Charge II: Violation of Article 87b, Uniform Code of Military Justice, 10 U.S.C. § 887b. Plea: Not Guilty. Finding: Withdrawn and Dismissed.

Specification (Breach of Restriction):

Did on or about 10 November 2023 break restriction. Plea: Not Guilty. Finding: Withdrawn and Dismissed.

Charge III: Violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. Plea: Guilty. Finding: Guilty.

Specification 1 (Violation of a Lawful General Order):

Did, on or about 10 August 2023, violate a lawful general order, to wit: chapter 4, paragraph 1(d)(4), OPNAVINST 5350.4E, dated 28 March 2022, by wrongfully using delta-8 tetrahydrocannabinol (THC- 8). Plea: Not Guilty. Finding: Withdrawn and dismissed.

Specification 2 (Violation of a Lawful General Order):

Did, on or about 9 November 2023, violate a lawful general order to wit: chapter 4, paragraph 1(d)(4), OPNAVINST 5350.4E, dated 28 March 2022, by wrongfully using delta-8 tetrahydrocannabinol (THC- 8). Plea: Guilty. Finding: Guilty.

Charge IV: Violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a. Plea: Not Guilty. Finding: Withdrawn and Dismissed.

2 United States v. Hajji Moussadek, NMCCA No. 202400130 Modified Entry of Judgment

Specification (Wrongful Use of a Controlled Substance):

Did on or about 10 August 2023, wrongfully use delta-9 tetrahydrocannabinol. Plea: Not Guilty. Finding: Withdrawn and Dismissed.

SENTENCE

On 19 January 2024, a military judge sentenced the Accused to the following: Confinement For Specification of Charge I: confinement for 65 days. For Specification 2 of Charge III: confinement for 65 days. The terms of confinement will run concurrently. Confinement for a total of 65 days. The Accused shall be credited with 65 days of pretrial confinement credit. Bad-Conduct Discharge