You may remember the brouhaha that erupted earlier this summer over a sweetheart PTA that a Navy doctor received and concerns about whether his victims were properly informed of that PTA’s terms.  One of our readers called our attention to this Stars and Stripes report that Washington State authorities have arrested the doctor, LCDR Anthony L. Velasquez, for failing to register as a sex offender.  He has now been released and hasn’t been charged.  The article notes:

Prosecutor Andy Anderson said it’s not yet clear whether Velasquez is required to register as a sex offender in Washington following his court-ordered dismissal from the Navy, noting that military laws regarding sexual offenses are different than state laws.

“It’s a tricky statute,” Anderson said. “The information that law enforcement had at that time, they believed he probably he was in violation. Police officers arrest people on the street, that doesn’t necessarily mean we charge everyone the police arrest, because presumably the prosecutors know a little bit more about the legal standards than the officers do.”

20 Responses to “Convicted Navy doc arrested (but later released) for failing to register as a sex offender”

  1. Brian le chien says:

    OK, I was on the road and missed the previous (and spiteful) discussion of this case. But, given the vitrol, I am not quite surprised that the convicted doctor was so quickly arrested for failing to register.

    Maybe the good police of Kitsap Washington are super viligent, read CAAFlog and the Stars and Stripes, and were waiting for the doctor to fail to register. Or, perhaps, someone tipped them off.

    My guess is the latter. Especially with the PTA agreement that appears to void the cap if the doctor doesn’t behave himself – and perhaps sneding him back to the brig. (while, perhaps sneaky, not sure there is anything wrong with that. If he failed to register, then he failed to register).

    It will be interesting to see where this case goes. Perhaps the doctor isn’t leaving the Navy as quickly as he thought?

  2. Tami says:

    DOD Instruction 1325.7 required notification to Kitsap police that the doc was going to be in their location.

    The list of UCMJ offenses requiring registration is at Enclosure 27. “Wrongful sexual contact” doesn’t appear to be a registerable offense as far as DOD is concerned, and neither is conduct unbecoming, if it’s not a “sexually violent” offense. So I think the requirement for the doc to register as a sex offender depends on whether his conviction qualifies under Washington state law as a registerable offense. If not, then I see no violation of any laws that would justify the convening authority withdrawing from the PTA and enforcing the adjudged sentence.

    The most recent version of the DODI I could find is dated 27 July 2001, and incorporating a change in 2003. Obviously, Article 120 has undergone substantial revision since then–could it be that DODI 1325.7 needs to be revised to catch up?

    I would think this issue would have been covered during the providence inquiry.

  3. anonymous says:

    Given the uncertainty of state law enforcement authorities over whether the accused is subject to registration, I’d think it would be difficult to prove this is a willful violation which would support withdrawal from the PTA or vacation of the suspended sentence.

    I would have thought this issue would have been reviewed before the PTA was approved by the CA (or at least before the government had made any representations to the public as to whether the accused would be subject to registration).

  4. Anonymous says:

    This issue definitely should have been covered in the PTA and during the providence inquiry. There should be a blurb in the PTA where the accused acknowledges he is pleading guilty voluntarily and knowingly, which includes knowledge that he might have to register as a sex offender. Unless the judge was the same one who thought it was OK to sentence an officer to confinement at a special court-martial?

  5. Anonymous says:

    You hit the nail on the head – MIGHT have to register. Looks like it is a close call. That is why it is so difficult to advise clients about the effects of their plea (or finding) of guilt.

  6. anonymous says:

    However close the call might be, I’d suspect there’ll be a lot of pressure from above for the CA to withdraw from the PTA or vacate the suspension, considering all the bad press this case has drawn.

  7. Anonymous says:

    Let’s hope there isn’t pressure “from above” as that is called UCI.

  8. anonymous says:

    But, does the concept of UCI actually apply to the post-trial processing phase? And, considering the broad discretion enjoyed by CAs post-trial, what is the standard of review which would apply?

  9. Anon says:

    the convening authority cannot withdraw unless the accused does sometin fishy. Every one is stuck with the deal.

  10. Chris says:

    I’m not sure how the conversation digressed so much. The DODI was updated in Nov 2009, which was still a lengthy delay given the new 120 went into effect on Oct 2008. WRT the PTA, the issue of sex offender registration is a notice provision under Part I of the PTA that is included should the offense require it. However, the judge does not discuss this during the providence inquiry as it is irrelevant to the facts of the offense committed. The judge does discuss it as he reviews Part I of the PTA. This notice provision is just that, whether the accused registers once released is not of concern to the CA. The DODI puts the affirmative duty on the appropriate military authorities to report. As such, should the accused fail to report –whether willful, negligent, or just late getting it done — does not allow the CA to withdraw from the PTA. Even more, such a provision is not part of the consideration between the CA and accused in deciding whether to accept the deal. Assuming the CA thinks that’s possible, not quite sure a vactation hearing would find a violation of the PTA. Also, consider the logistic problems in doing such a hearing — not worth it.

  11. Southern Defense Counsel says:

    Chris,

    You hit the nail on the head WRT the DODI being updated, and I believe that it makes wrongful sexual contact a reportable offense, though I’m not sure. I disagree with the reasoning for not having an 1109 being logistical. The CA has 2 years hanging over this guy’s head, if they wanted to go after him it’s a significant chunk of confinement. I think the real problem here is that the PTA may not allow for an 1109 hearing in this case. The Navy language defines misconduct as “any act or omission in violation of the UCMJ that constitutes a material breach of this PTA.” Two problems: one is failing to register a material breach: maybe, maybe not. Two: is failing to register as a sex offender a violation of the UCMJ? I’m not sure it is. This one is a situation where the law isn’t clear and the appellate courts will likely give the CA a spanking if they try to go outside the lines too far. Best to let the state decide whether their laws are broken and whether the good doctor is a sex offender. After all, his actions now are more of a concern for the civilians. Acting like this is a military matter starts to sound like butt hurt.

  12. Dew_Process says:

    As the Velasquez case demonstrates, just because the DODI mandates “notice,” the way many state laws are written, there is no duty to register. That of course compounds the duty of a defense counsel to properly advise his/her client about a potentially serious matter in a jurisdiction where they may not be licensed to practice in.

    NY’s highest court, grappled with this – again, a Navy case – a few years ago, and strangely ruled against the Government, in People v. Kennedy:
    http://www.courts.state.ny.us/reporter/3dseries/2006/2006_04342.htm

    Part of the problem in Kennedy was the way the NY SORA is worded; the other part was that the civilian prosecutor did not have a clue as to how courts-martial and their review and appeals work. How the State of Washington deals with this remains to be seen.

  13. Tami says:

    The issue with the registration requirement being in the PTA is for the judge to discuss w/ the accused during the providence inquiry whether the accused is making a knowing and voluntary decision to plead guilty. That includes knowledge of significant collateral consequences that impact an accused’s decision to plead guilty.

    Having a clause in the PTA to the effect of, “I’m satisifed with my defense counsel. My defense counsel has told me everything I need to know, including that pleading guilty to wrongful sexual contact means I might have to register as a sex offender, and I still want to plead guilty,” establishes an objective record an appellate court can use to slam-dunk an IAC claim, if the accused should make such a claim down the road. I don’t know that Velasquez would do that in this case, since if he was successful, the sweet deal he got would go away…

    In any event, having this kind of clause in the PTA gives the judge a heads-up that this is a potential issue that needs to get squared away.

  14. Charles Gittins says:

    What makes you all think that this should have been caught in providency? Few SJAs, much less TC’s know where to find the DoD offenses requiring registration. If it is not an enumerated offense in the DODI, and DC knew it when he negotiated the PTA, I’d say he outlawyerwed the Government.

  15. A TC says:

    I have scoured dtic.mil and could not find the Nov 09 update to DODI 1325.7. A little help?

  16. A TC says:

    As I was. I found it on JAGCNET. It’s an OUSD memo.

  17. DMW says:

    Here’s a link to a copy of the new version, incorporating the new version of Art 120.

  18. Friend says:

    Anon 1125 – cheap shot.
    For all – the USN trial guide, page 21, instructs MJs to go through a litany with the accused should there be any “sexual offenses”. That advisory then goes on to speak of potential collateral effects of pleading guilty. This occurs way before any Care inquiry or PTA inquiry. The smart defense counsel will also have the same advisement in their client’s PTA so as not to gain the ire of the CCA and the Appellate Defense folks. Of course this would mandate a sure footed judge to once again touch on this (no pun intended) subject again.

    I am guessing the MJ did just as the USN trial guide suggests.

  19. It gets deeper says:

    I read the Kitsap Sun. It reported last week after the arrest and release that the Kitsap County DA had reviewed the charges and determined that the closest thing under Washington law to the offenses charged at court martial was Indecent contact a class 2 felony which requires registration as a sex offender. They are therefore treating the UCMJ charge as an offense that calls for registration. As registration is a state function, their analysis and conclusions prevail regardless of what DoD says on the topic. If the state says they must register, they fail to do so at their peril. That peril includes the possibility that the failure may be a criminal act that could result in the vacation of any portion of any suspension of a punishment rendered by court martial It appears from the article that the DA has charged Velasquez and according to his civilian lawyer the individual believes he has a duty to register in Washington as his counsel reported he had intended to register last thursday.Now suppose as a result of his failure to register the civilians pursue the matter resulting in jail time while he his dismissal is still pending and he is still subject to the UCMJ. His incarceration makes him US . Is that depending of course on the duration of the UA as defined by the sentence an independent ground for vacating the suspension? Things are becoming curiouser and curiouseer. Now add to the mix Artcile 72 making the SPCM authoruty ,now Bremerton responsible for the vacation hearing and a recommendation to the GCM authority, now also in the weastern USA who decides whether or not to vacate tjhe suspension. It does not go back to the original CA. If those two new players have smart SJAs they are probably aware of the situation and if they have read the press about this case they are probsbly wondering what they did to deserve this opportunity to do nothing and join CNFJ in the frying pan or vacate the suspension and silence the critics. Either way they lose or at least co not win.By the way is there a living JAG who has ever conducted one of these hearings and made the required recommendation My guess is it would be very much like a 32 followed by something akin to a 34 advice. But who initiates the proves, the SPDM or GCM authority?