CAAFlog » Court-Martial News » SSgt Larrabee

Last week Marine Staff Sergeant (E-6) Larrabee filed this federal lawsuit seeking declaratory relief that his court-martial conviction is unconstitutional. The suit cites the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02, as the basis for the relief requested.

Larrabee completed 20 years of active duty service in 2015 and requested transfer to the Fleet Marine Corps Reserve (FMCR). The FMCR accepts enlisted Marines with more than 20 but less than 30 years of active duty service, and its purpose is “to maintain a ready manpower pool of trained Marines for recall and mobilization.” MCO 1900.16, para 7001.2. A Marine in the FMCR receives retainer pay (computed at the same rate as retired pay) until the Marine achieves 30 years of service, at which point the Marine may actually retire (by transferring to the retired list). See 10 U.S.C. § 8326. Personnel on the retired list are, of course, subject to court-martial jurisdiction. So too are members of the FMCR. See Article 2(a)(6).

Larrabee transferred to the FMCR on August 1, 2015. At the time of his transfer he was stationed in Iwakuni, Japan, which is a deployed location. Larrabee remained in Iwakuni and got a job managing local bars. Just three months after his transfer to the FMCR, Larrabee video-recorded himself sexually assaulting a woman at one of the bars; a place named Teaserz that is approximately 1000 feet from the gate of the nearby Marine Corps Air Station. The woman worked as a bartender at the bar. She was also the wife of an active-duty Marine sergeant stationed at the nearby Marine Corps Air Station.

The woman reported the assault to military authorities. They interviewed Larrabee, he made a number of admissions, and he was eventually charged with numerous offenses. He pleaded guilty (pursuant to a pretrial agreement) at a general court-martial composed of a military judge alone to sexual assault and indecent recording in violation of Articles 120 and 120c, and was sentenced to confinement for eight years, a reprimand, and a dishonorable discharge.

On appeal, Larrabee challenged the existence of court-martial jurisdiction over him as a member of the FMCR. The NMCCA summarily rejected the challenge in an unpublished opinion available here, and CAAF summarily affirmed, 78 M.J. 107 (C.A.A.F. Aug. 22, 2018). Larrabee then petitioned for certiorari, the Solicitor General opposed cert. on numerous grounds, and the petition was denied last month. Larrabee’s federal suit follows.

The suit faces incredibly long odds of success, not just because the facts of Larrabee’s case raise uniquely military concerns and the Declaratory Judgment Act is an odd tool to try and win reversal of a court-martial conviction that is final and conclusive, but also because Larrabee’s complaint makes a number of remarkably dubious assertions.

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Today’s order list (available here) includes a denial of the petition for certiorari in Larrabee.  The petition (available here) challenged the constitutionality of court-martial jurisdiction over retired members of the armed forces who receive retired pay.

The exercise of such jurisdiction was our #1 Military Justice Story of 2017.

This week at SCOTUS: The Solicitor General filed this response in opposition to the cert petition in Larrabee. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral arguments at CAAF are on January 22, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on January 16, 2019, at 2 p.m.:

United States v. Pacheco, No. 20170177

Issues:
I. Whether the evidence was legally sufficient to convict appellant of child endangerment (Specification 1 of Charge II).

II. Whether the military judge erred in denying defense counsel the ability to cross-examine JP on prior specific acts of violence and present evidence of JP’s prior acts of violence through defense witnesses.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Laubach, No. 39396, on January 16, 2019, at 10 a.m. No additional information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on January 31, 2019.

Significant military justice event this week: The 6th annual Joint Appellate Advocacy Training is this Tuesday-Thursday, September 18-20, 2018 at the Rosenthal Theater, Fort Myer-Henderson Hall in Arlington, VA. Additional details here.

This week at SCOTUS: A petition for certiorari (available here) was filed in Larrabee v. United States, No. 18-306, on Friday, September 14, 2018. The petition challenges the constitutionality of court-martial jurisdiction over retired members of the armed forces who receive retired pay. The exercise of such jurisdiction was our #1 Military Justice Story of 2017.

Staff Sergeant Larrabee is a retired member of the Marine Corps who pleaded guilty to sexual assault and indecent recording (offenses that occurred after he transferred to the retired list) and was sentenced to confinement for 8 years, a reprimand, and a dishonorable discharge. All confinement in excess of 10 months was suspended pursuant to a pretrial agreement. The Navy-Marine Corps CCA affirmed the findings and sentence in 2017 (link to slip op.). CAAF granted review as a trailer to United States v. Dinger, 77 M.J. 447 (C.A.A.F. Jun. 18, 2018) (CAAFlog case page), and then summarily affirmed in light of Dinger in August.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF completed its oral argument calendar for the 2017 term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The 2018 term begins on October 1, 2018. The next scheduled oral argument at CAAF is on October 23, 2018.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 26, 2018.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on October 2, 2018.