AFCCA today announced its published decision in United States v. Rhodes, __ M.J. ___, No. ACM 34697 (f rev) (A.F. Ct. Crim. App. 12 Feb. 2007). This is one of those cases that remind us why it’s important to read CCA opinions from other services. The Air Force Court grants relief based on a doctrine I’d never heard of. The Air Force Court tells us, “The first error occurred when the trial counsel used the appellant’s status as a security police officer as an aggravating factor in his sentencing argument to the members.” Id., slip op. at 3. The court emphasizes that “there was no evidence that the accused’s duty performance was affected or that he used his duty position as a security police officer in the commission of the offenses.” Id. Now here’s the kicker: “The prohibition against using an accused’s duty position to increase a sentence is so well established in Air Force trial practice that it is tantamount to black letter law. United States v. Bobby, 61 M.J. 750, 755-56 (A.F. Ct. Crim. App. 2005); United States v. Gruninger, 30 M.J. 1142, 1143 (A.F.C.M.R. 1990); United States v. Lewis, 7 M.J. 959-60 (A.F.C.M.R. 1979); United States v. Moore, 6 M.J. 661, 663-64 (A.F.C.M.R. 1978); United States v. Collins, 3 M.J. 518, 520 (A.F.C.M.R. 1977); United States v. Thomaselli, 14 M.J. 726, 728 (A.F.C.M.R. 1982). It is simply not allowed unless there is some connection between an accused’s duty position and the commission of the crime. Here, there was absolutely none.” Id.
Here’s a question directed to our readers from the Department of the Navy. (That encompasses every CAAFlog reader except Army Lurker, Fitzcarraldo, California Weird Military Organization Dude (or Dudette), and every lawyer who has ever served in the United States Coast Guard.) Have you ever seen a case involving an MP, an MAA, a SP, etc., in which the TC didn’t argue that the accused’s position of trust made the offense worse even if the offense was committed while the accused was on leave in some remote off-the-beaten path location like Columbus, Ohio? Has anyone not in the Air Force ever heard of this doctrine? I think you’ll now be seeing it cited in a lot of other jurisdictions.
Here’s the other reason I find Rhodes fascinating. Staff Sergeant Rhodes was originally convicted of one spec of using psilocyn (I have no idea what that is, but I’ll bet consuming it might make you dig for diamonds in the pouring rain in your neighbor’s yard wearing nothing but muddy shorts), one spec of possessing psilocyn, one spec of distributing ecstasy, one spec of stealing beverages worth less than $100, and one spec of disorderly conduct. A GCM with officer and enlisted membership sentenced him to a BCD, 10 months of confinement, total forfeitures, and reduction to E-1. CAAF set aside the psilocyn use and possession specs. United States v. Rhodes, 61 M.J. 445 (C.A.A.F. 2005). Does anyone doubt that had a CCA performed a Sales analysis, it would have affirmed a sentence including a BCD? See United States v. Sales, 22 M.J. 305 (C.M.A. 1986). Well, guess what? CAAF remanded for a rehearing on the two specs it set aside or, in the alternative, a rehearing on the sentence. The CA chose the latter and at the rehearing before officer members, Rhodes was sentenced to reduction to E-1 and forfeiture of all pay and allowances. What CCA would have thought a sentence that light was a possibility for distribution of ecstasy alone, much less distribution of ecstasy combined with two other offenses? Rhodes provides still more proof that Sales and its progeny are untenable. Oh, and the remedy that AFCCA applied for the improper sentencing argument in Rhodes? You guessed it — reassessment of the sentence, citing Sales.