In an unpublished opinion in United States v. Sabia, No. 20150225 (C.G. Ct. Crim. App. Feb. 25, 2015) (link to slip op.), the Coast Guard CCA contemplates the appropriateness of a sentence of confinement for 150 days, reduction to E-2, and a bad-conduct discharge for the offense of wrongfully communicating a threat, such conduct being to the prejudice of good order and discipline in the armed forces, in violation of Article 134. The convening authority disapproved the adjudged confinement. The opinion doesn’t provide the precise details of the specification, but it indicates that the appellant made some sort of threatening statement to military leaders at Port Angeles whom he did not know, had never met, could not identify, and didn’t threaten by name.

In an opinion written by Chief Judge McClelland, the CCA affirms the sentence as approved. But it seems to be a close call. In particular, a concurring opinion written by Judge Duignan notes that:

Appellant, who was having medical problems, found himself in an escalating chain of circumstances that ultimately led to his court-martial. Homeless, and living out of his car in the Pacific Northwest, Appellant needed help. The record indicates that his command knew of his situation, and might have done more to intervene. Appellant’s threats—although treated with appropriate seriousness by his command—were essentially a cry for help. No one at the command believed that Appellant truly wanted to harm his chain of command. Rather, the record indicates that Appellant was essentially disconnected from his command altogether.

Slip op. at 3.

6 Responses to “A difficult case of sentence appropriateness at the Coast Guard CCA”

  1. stewie says:

    So, Judge Duignan says in his concurrence that, because of Nerad et al, the appellate courts don’t have clemency power.
     
    So, I looked at Nerad.  In part, and granted this is a simplification, Nerad looks to Article 60 and the language there for the proposition that Congress placed “unfettered” clemency power in the hands of the CA.  I read that to say, thus, there is no need for the appellate courts to engage in clemency actions.
     
    I get that our courts do not engage in explicit equity (although I think it’s clear they engage in it nevertheless in multiple ways dressed up as “law”).  But with the changes to Article 60 effectively wiping out the ability of the CA to do clemency (unfettered or otherwise), is it time perhaps to relook at Nerad et al and the idea that appellate courts have no clemency role at all?
     
    IOW is the reasoning of Nerad based more (or even exclusively) on the fact that Congress filled/gave the clemency role to the CA, than on the idea that it did not want that power to be exercised by the appellate courts?

  2. Monday morning QB says:

    The deeper question should be why is this at a court-martial?  There must have been something serious on the face of the threat.  Otherwise, with this set if facts, why not NJP, unless the accused asked for what he got?  Unlikely that he refused NJP since this was a guilty plea.

  3. Charlie Gittins says:

    Re: the concurring opinion.  I though the duty of the CCA was to approve only so much of the approved findings and sentence as the CCA finds to be appropriate, not whether the “court does not find the approved sentence inappropriate.”  I don’t think they are two sides of the same coin.  One requires the Court to use itse personal judgment to make an independent determination that the sentence was appropriate.  The other is more along the lines of testing for an abuse of discretion by the trial court.  I think it is application of an incorrect legal standard, but, alas, it is but one vote of a three member panel.

  4. SgtDad says:

    Monday Morning QB has a point.  This is an utter failure of leadership, especially at the lower levels.  Just who the heck was his platoon sergeant (or the Coastie equivalent) and why was he not getting people involved? That’s his job!
     
    I know Pt. Angeles (PA in local parlance).  There are immense community resources there to help outside the Coast Guard.  A Coastie in distress would have them coming out of the woodwork to help.

  5. ScottComstock says:

    Failure of leadership is putting it mildly.  Did any heads roll at PA as a result of this?  (I’m guessing no)

  6. SgtDad says:

    ScottComstock: I guess “no.” as well.  If there was any sense in the leadership — including the CA — this case would not be here.  Long ago I did have a troop living out of his car.  I was the Plt Sgt.  I raised the issue with the SgtMaj & help came along rapidly — starting with the SgtMaj’s wife.  If the troop is mentally ill (a possibility, I think) then you get him to the dispensary.  The naval hospital in Bremerton ain’t that far away.  If he’s not a grownup (also a possibility), then that’s what NCO’s & chiefs are for.