In United States v. Baratta, __ M.J. __, No. 201600320 (N.M. Ct. Crim. App. Mar. 15, 2018) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA concludes that Article 66 does not confer jurisdiction to modify offense-reporting codes included on the Department of Defense Report of Result of Trial (DD Form 2707-1).
Captain (O-6) Baratta pleaded guilty to two specifications of indecent acts committed prior to 28 June 2012, in violation of Article 120, and to four specifications of indecent viewing, visual recording, or broadcasting committed after 28 June 2012, in violation of Article 120c. A panel of officer members sentenced him to confinement for three years and a dismissal. A pretrial agreement limited the confinement to 24 months.
The offenses involved Baratta surreptitiously video-recording men in a locker room shower and in a guest bedroom and bathroom in his home. “When the police searched the appellant’s home computer, they found nearly four years’ worth of video recordings saved and categorized.” Slip op. at 2.
After Baratta’s trial, the Report of Result of Trial form was completed. That form includes a section (block 3.c) for the DIBRS Code for each offense. DIBRS is the Defense Incident-Based Reporting System, and is the DoD equivalent of the FBI’s National Incident-Based Reporting System (NIBRS). DoD Manual 7730.47-M, Volume 2 (link), provides tables of DIBRS codes for offenses under the UCMJ.
The issue in Baratta, however, isn’t really the DIBRS code applied by the DoD.
Writing for the panel, Senior Judge Marks explains:
Trial counsel entered DIBRS codes 120-K1 and 120CC1 for Indecent Acts and Indecent Visual Recording, respectively. According to DoDM 7730.47-M, Volume 2, the DIBRS code for an “Indecent act on or after October 1, 2007 but before June 28, 2012” is 120-K1. The DIBRS code for “Other sexual misconduct indecent viewing, visual recording, or broadcasting on or after June 28, 2012” is 120CC1. The corresponding NIBRS code for both offenses is 11D, but it does not appear on the Report of Results of Trial or elsewhere in the record.
The appellant claims that his Report of Results of Trial mispresents his offenses, and NIBRS Code 11D, in particular, is the source of prejudicial harm. “The NIBRS defines ‘11D’ as ‘[t]he touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.’” Via Motion to Cite Supplemental Authority to this court, granted 29 January 2018, the appellant presented evidence of his Virginia State Police Sex Offender Conviction Record. The Virginia record reports the appellant’s conviction of three counts of “rape” of an adult and five convictions of “indecent viewing, visual recording or broadcasting[.]” The code section cited is “UCMJ Art. 120.”
The appellant argues that this record is “demonstrable evidence as to why post-trial documents must correctly reflect the results of an appellant’s trial proceedings. The coding on [the appellant’s] post-trial document is incorrect and causes harm and prejudice.”
Slip op. at 5-6 (emphases added). Considering this, Baratta’s real objection is to the classification of his offenses by the separate sovereign the Commonwealth of Virginia.
The panel finds no jurisdiction to correct this asserted error:
The Report of Results [sic] of Trial in this case accurately reflects the findings and sentence. DIBRS and NIBRS codes are reporting mechanisms outside the UCMJ and Manual for Courts-Martial. They are neither findings nor parts of a sentence, thus we do not have the authority to act upon them. Art. 66(c), UCMJ.
Slip op. at 7. The doesn’t leave Baratta (or others who are similarly-situated) without options: a Boards for Correction of Military Records can correct an inaccurate Report of Result of Trial.
But it’s hard to see how there’s any error to be corrected in this case.
Baratta pleaded guilty to violating two different statutes: For the pre-June 2012 offenses, he pleaded guilty to violating Article 120(k) (2006); for the post-June 2012 offenses he pleaded guilty to violating Article 120c(a) (2012). Slip op. at 5. The DIBRS offense codes listed in DoD Manual 7730.47-M, Volume 2, for these offenses are 120-K1 (for the 120(k) offenses) and 120CC1 (for the 120c(a) offenses), and that’s exactly what appears on the Report of Result of Trial. Not only does “the Report of Result of Trial in this case accurately reflects the findings and sentence,” as Senior Judge Marks writes in the opinion, but it also seems to accurately reflect the applicable DIBRS code.