RE: US v. Rowe - Art 32 follow up

[Robert Bracknell <rbracknell@acus.org>]

Resending -- got a server error from Quantico server...




Butch Bracknell
Lieutenant Colonel of US Marines
CMC Fellow, The Atlantic Council
o 202-778-4979
c 757-287-4704
________________________________________
From: Robert Bracknell
Sent: Tuesday, June 14, 2011 10:49 AM
To: Hoover Capt Christopher M
Cc: haytham@puckettfaraj.com; Mcconnell Maj Matthew N
Subject: RE: US v. Rowe - Art 32 follow up

Men:
Sorry for the delay in getting back to you.  I didn't have remote access to my email on Friday.

Captain Hoover:
Thanks for the cites and the followup.

Defense counsel:
How much more time do you need to lay your hands on the documents you intend to submit (phone records and excerpts from the "Hudspeth investigation")?  I'd like to close the investigation pretty soon so I can get started on the report...

s/f,'
rgb


Butch Bracknell
Lieutenant Colonel of US Marines
CMC Fellow, The Atlantic Council
o 202-778-4979
c 757-287-4704
________________________________________
From: Hoover Capt Christopher M [christopher.hoover@usmc.mil]
Sent: Friday, June 10, 2011 4:06 PM
To: Robert Bracknell
Cc: haytham@puckettfaraj.com; Mcconnell Maj Matthew N
Subject: US v. Rowe - Art 32 follow up

Sir,
  Upon further research, I provide this case analysis on the solicitation issue.

U.S. v. Robertson, cited herein, is on point as well.

"The challenged specification, which is laid under Article 134, UCMJ, avers in pertinent part that appellant wrongfully solicited a civilian, Mark Duplon, to make a false official statement. Such statement, to the effect that "two white guys were driving" the car at the time of the fatal accident, was intended by the appellant "to deceive" "the police." Record at 37-38. At the time of the solicitation, both the appellant and the civilian were at the scene of the accident. Record at 36. There is no evidence that the appellant was being interrogated by a civilian police officer, but it is reasonable to conclude that the appellant believed civilian authorities would question him. Record at 37. It is just as reasonable to conclude that the appellant must have also known that military authorities would conduct an investigation.

Similar to the issue which was before this court in United States v. Robertson, 17 M.J. 846, 851 (N.M.C.M.R.1984), the appellant here does not attack the sufficiency or specificity of the pleading. There is no contention that he was misled or that he is now concerned that the record will not afford protection against double jeopardy. Instead, it is suggested that since the first element of the charged offense requires that the accused solicit another to commit a violation of the UCMJ, and since the specification alleges solicitation of a violation by a civilian, who is not subject to the UCMJ, the appellant could not have violated Article 134, UCMJ.

We disagree. As we acknowledged in Robertson, although we were then unaware of any decisional law directly on point,FN1 we held that the solicitation of another person to commit an offense which, if committed by one subject to the code, would be punishable under the UCMJ, is an offense cognizable under Article 134. The appellant also relies upon United States v. Johnson, 39 M.J. 1033 (A.C.M.R.1994), however, the facts of this case are clearly distinguished from those in Johnson. Here, we need not determine the "officiality" of any statement. Rather, we need only make the following determinations: (1) whether a false official statement was solicited, and (2) if such a statement were made by a person subject to the code, would it be violative of the UCMJ. Initially, we find that the appellant did solicit Mark Duplon to make a false official statement. We further find that if Duplon were a person subject to the code, it would be unlawful for him to make a false official statement.

Respectfully,

Captain Christopher M. Hoover, USMC
Military Justice Officer MCB Quantico
Work: (703) 784-0037
Cell: (603) 809-5781


-----Original Message-----
From: Hoover Capt Christopher M
Sent: Friday, June 10, 2011 14:26
To: 'Robert Bracknell'
Cc: haytham@puckettfaraj.com; Mcconnell Maj Matthew N
Subject: US v. Rowe - Art 32 follow up

Sir,
  You asked both TC/DC to answer a few questions.
1. constructive force: whether unlawful activities is enough to define the threat under Charge I, IV, VII.  It is the government's position that "unlawful activities" is enough to define the fear/threat necessary for those charges.  The defense is within their rights to ask for a bill of particulars if they do not feel it is specific enough, but for charging purposes, the government has articulated enough to meet the element.

2. solicit another that is not subject to the code: the government relies on the explanation provided in the solicitation definition under the code (e) any person subject to the code who is found guilty of soliciting or advising another person to commit an offense which, if committed by one subject to the code...  The language "if committed by one subject to the code is telling.  Had the drafters wanted to eliminate those that are not subject to the code, then they would not have included the language "if".

3.  Instances of misconduct alluded to in the transcript:
Page    Line    Words
52      18      He jacked off
53      3-4     And he thought it looked fucked He was like he knew that I didn't want to participate.  ROWE-yeah
56      10-13   I probably am because to date I can't have sex with my wife because I'm scared to give her something.  I'm so scared that I have something, that I won't go to the friggin' doctor.
57      11      Because I was drunk, and it felt
64      13-14   I asked my therapist straight up, should I tell my wife, because it bothers me every day.
67      12      I didn't want to do it
77      6-9     It was fucked up, and I've never thought about it as much as I've thought about it this last we've talked about it, and I will admit to you that it's up, and I'm sorry.
78      7-9     I will tell you this,  you didn't sex with Jeremy,  you may have had oral sex with Jeremy, but did have sex with Jeremy.
78      20-22   You invited him to come see what a slut I was?  ROWE-I don't remember the words.
80      17-20   Don't make yourself out to be a super-hooker, whore, like was wild dirty video type.  I wasn't, no.  It was like fifteen year olds being weird.
85      17      Yeah, I regret it now
88      14-19   I've never done anything like that before, and I'm sure that Jeremy's never done anything like that before and now I know that, you know, you haven't.  I think it's an experience that we all shared that wish we didn't share.

4.  Extortion-sex being a thing of value.  US v. Hicks, 24 MJ 3, 1987.  Appellant maintains that communicating a threat with the intent to obtain sexual favors does not satisfy the second element of extortion under Article 127. He posits that the intent to gratify a personal desire is not an "advantage" or "anything of value" under the statute. We specifically reject the suggestion that these statutory terms do not extend to sexual favors or the fulfillment of subjective desires. It is sufficient if there is some "value" or "advantage" to the accused in the thing sought. "Value" and "advantage" are broad concepts and are not limited to pecuniary or material gain.

5.  Multiplicity: the government is charging in the alternative and providing for alternative theories.

6.  The government does not ask for nor intend to go forward with 107 charges for "I have no phone numbers".

Add charges:  The government would ask that a 133 charge be added for conduct unbecoming for the hotel trysts that were testified to be Lt Klay.  As both are married, this conduct is unbecoming an officer.  The government also asks that a 120 charge for indecent act be recommended for the masturbation by Capt Rowe in the hotel room in the presence of Lt Klay.

I do not believe that there is anything outstanding at this point, but please correct me if I am wrong.

Respectfully,

Captain Christopher M. Hoover, USMC
Military Justice Officer MCB Quantico
Work: (703) 784-0037
Cell: (603) 809-5781