United States v. Pagan

U NITED S TATES A IR F ORCE C OURT OF C RIMINAL APPEALS ________________________

No. ACM S32738 ________________________

UNITED STATES Appellee v. Garrett J. PAGAN Airman Basic (E-1), U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Decided 11 August 2023 ________________________

Military Judge: Mark F. Rosenow. Sentence: Sentence adjudged 23 June 2022 by SpCM convened at Barks- dale Air Force Base, Louisiana. Sentence entered by military judge on 24 July 2022: Bad-conduct discharge and confinement for 60 days. For Appellant: Major Abhishek S. Kambli, USAF. For Appellee: Colonel Matthew D. Talcott, USAF; Lieutenant Colonel Thomas J. Alford, USAF; Captain Olivia B. Hoff, USAF; Mary Ellen Payne, Esquire. Before JOHNSON, GRUEN, and MASON, Appellate Military Judges. Judge MASON delivered the opinion of the court, in which Chief Judge JOHNSON and Judge GRUEN joined. ________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ MASON, Judge: A military judge sitting as a special court-martial convicted Appellant, in accordance with his pleas, of two charges with one specification each of wrong- fully using cocaine, in violation of Article 112a, Uniform Code of Military

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Justice (UCMJ), 10 U.S.C. § 912a.1 A panel of officer members sentenced Ap- pellant to a bad-conduct discharge and confinement for 60 days. The convening authority took no action on the findings or sentence. Appellant raises one assignment of error: whether the military judge erred in his instruction to the members on a bad-conduct discharge. We find no error materially prejudicial to Appellant’s substantial rights and affirm the findings and sentence.

I. BACKGROUND On 23 October 2021, Appellant was at a bar in Shreveport, Louisiana. While there, he was approached by a civilian and offered cocaine. Appellant accepted. He used a dollar bill to ingest the cocaine through his nose. Two days later, he provided a urine sample pursuant to the Air Force’s Drug Demand Reduction Program. That urine sample tested positive for cocaine. On 4 April 2022, Appellant was convicted by a summary court-martial and sentenced to 14 days’ confinement and reduction to the grade of E-1. Three days before his summary court-martial, on 1 April 2022 Appellant again proceeded to a bar in Shreveport, Louisiana. He asked an individual at the bar if they had any “coke.” The individual did. Appellant purchased cocaine from this individual. Appellant then went to the bathroom and used a dollar bill to ingest the cocaine through his nose. At some point after this use, Appel- lant provided a urine sample which tested positive for cocaine. On 15 April 2022, merely days after being released from confinement as a result of his summary court-martial sentence, Appellant was again at a bar in Shreveport, Louisiana. There, he asked an individual at the bar if they had any “coke.” The individual did. Appellant purchased cocaine. He then went to the bathroom and used a dollar bill to ingest the cocaine through his nose. At some point after this use, Appellant provided a urine sample which tested pos- itive for cocaine. On 22 June 2022, Appellant pleaded guilty to the uses of cocaine on 1 April 2022 and 15 April 2022 at a special court-martial which is the subject of this opinion. The military judge accepted Appellant’s guilty pleas and entered find- ings consistent with Appellant’s pleas. Appellant selected sentencing by officer members. Prior to the members arriving for the presentencing proceedings, the military judge conducted an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session with counsel. During this session, trial counsel requested a special instruction with regard to the bad-conduct discharge punishment option. Trial counsel

1 Unless otherwise noted, all references in this opinion to the UCMJ and Rules for Courts-Martial are to the Manual for Courts-Martial, United States (2019 ed.).

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requested that instead of the standard instruction on a bad-conduct discharge, that the members be provided the following: A bad[-]conduct discharge is less severe than a dishonorable dis- charge and is designed as a punishment for bad conduct rather than as a punishment for serious offenses of either a civilian or military nature. It is also appropriate for an accused who has been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary. The military judge heard the parties’ positions on this proposed instruction at that time. Trial defense counsel objected to this instruction arguing that the language was confusing and that it simply served to bolster the Government’s argument. The military judge stated that he would wait until all the evidence was in before he finalized the instructions, at which time the military judge would finish his draft instructions and send it to the parties for review. When the evidence for the presentencing phase of the trial was completed, the military judge conducted an Article 39(a), UCMJ, session to discuss the draft instructions he had provided to the parties. The section on the bad-con- duct discharge punishment option prompted further discussion. The draft in- struction stated: You are advised that the stigma of a punitive discharge is com- monly recognized by our society. A punitive discharge will place limitations on employment opportunities and will deny the ac- cused other advantages which are enjoyed by one whose dis- charge characterization indicates that he has served honorably. A punitive discharge will affect an accused’s future with regard to his legal rights, economic opportunities, and social acceptabil- ity. This court may adjudge a bad-conduct discharge. Such a dis- charge deprives one of substantially all benefits administered by the Department of Veterans Affairs and the military establish- ment. A bad-conduct discharge is a severe punishment and may be adjudged for one who, in the discretion of the court, warrants severe punishment for bad conduct, even though such bad con- duct may not include the commission of serious offenses of a mil- itary or civil nature. A bad-conduct discharge may also be adjudged for one, who in the discretion of the court, has been convicted repeatedly of mi- nor offenses and whose punitive separation appears to be neces- sary, keeping in mind that the accused is to be punished only for

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the offenses of which the accused has been found guilty in this court-martial. Noting the trial defense counsel’s prior objections were preserved, the mil- itary judge stated, This is not what the [G]overnment had put forward, but it is a translation of the language that comes out of the Rules for Courts-Martial, and it is softened in a way so it doesn’t say some- thing like, “this would be appropriate,” because I’m not going to get at the imprimatur of appropriateness or inappropriateness. He then asked trial defense counsel if they had additional concerns to raise. Trial defense counsel proposed, “immediately before the final period of the highlighted portion—so the portion, ‘in this court-martial, however, a bad[- ]conduct discharge need not be adjudged,’ or something to that effect.” The mil- itary judge declined to add the requested language and explained his thought process stating: I understand that. I will tell you that where it’s sitting right now, the way that this will get read is, “you may adjudge a bad[-]con- duct discharge,” which I would always give. The blue portion, “it may also be adjudged.” And then, I am just highlighting to you, the immediate next thing I say after that one sentence is, “Fi- nally, if you wish, this court may sentence the accused to no pun- ishment.” So that’s kind of, in my mind, the coda that you’re looking for is right there, because I’m emphasizing to them, no punishment at all. No punishment certainly includes no punitive discharge. So that answers my concern there, but I will hear from you if you have any proposed language, because I’ll consider it before deciding on finalized language. Trial defense counsel asked for a moment and conferred with his co-coun- sel. When they were finished, trial defense counsel stated, “Your Honor, I think we’re comfortable with the language as outlined.” A few moments later, the members were brought back into the courtroom and the military judge instructed the members with the language reflected in the draft he and counsel had just discussed. Upon the completion of instruc- tions, the military judge asked counsel if they objected to any of the instruc- tions or requested additional instructions. Both trial counsel and trial defense counsel stated, “No, Your Honor.”

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II. DISCUSSION 1. Law We review a military judge’s sentencing instructions for an abuse of discre- tion. United States v. Talkington, 73 M.J. 212, 215 (C.A.A.F. 2014) (citation omitted). “In this context, a military judge abuses his discretion when the in- structions are based on an erroneous view of the law or are not tailored to the case’s facts and circumstances.” Id. (first citing United States v. Duncan, 53 M.J. 494, 499 (C.A.A.F. 2000); and then citing United States v. Greaves, 46 M.J. 133, 139 (C.A.A.F. 1997)). “The military judge shall give the members appropriate instructions on sentence.” Rule for Courts-Martial (R.C.M.) 1005(a); United States v. Barnett, 71 M.J. 248, 252 (C.A.A.F. 2012). Required instructions on sentence include: (1) A statement of the maximum authorized punishment that may be adjudged and of the mandatory minimum punish, if any; (2) A statement of the effect any sentence announced including a punitive discharge and confinement, or confinement in excess of six months, will have on the accused’s entitlement to pay and allowances; (3) A statement of the procedures for deliberation and voting on the sentence set out in R.C.M. 1006; (4) A statement informing the members that they are solely re- sponsible for selecting an appropriate sentence and may not rely on the possibility of any mitigating action by the convening or higher authority; (5) A statement that the members should consider all matters in extenuation, mitigation, and aggravation, whether introduced before or after findings, and matters introduced under R.C.M. 1001(b)(1), (2), (3), and (5); (6) A statement that the members shall consider the sentencing guidance set forth in R.C.M. 1002(f); and (7) Such other explanations, descriptions, or directions that the military judge determines to be necessary, whether properly re- quested by a party or determined by the military judge sua sponte. R.C.M. 1005(e)(1)–(7). Rule for Courts-Martial 1003(b) sets forth the authorized punishments a court-martial may adjudge. The sole punitive discharge available at a special court-martial is a bad-conduct discharge.

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A bad-conduct discharge applies only to enlisted persons and may be adjudged by a general court-martial and by a special court-martial which has met the requirements of R.C.M. 201(f)(2)(B). A bad-conduct discharge is less severe than a dis- honorable discharge and is designed as a punishment for bad- conduct [sic] rather than as a punishment for serious offenses of either a civilian or military nature. It is also appropriate for an accused who has been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary. R.C.M. 1003(b)(8)(C). “During presentencing proceedings or at such other time as the military judge may permit, any party may request that the military judge instruct the members on the law as set forth in the request.” R.C.M. 1005(c). While counsel may request specific instructions, the military judge has substantial discretion in deciding on the instructions to give and whether the requested instruction is appropriate. This discretion must be exercised in light of correct principles of law as applied to the facts and circumstances of the case. United States v. Miller, 58 M.J. 266, 270 (C.A.A.F. 2003). Denial of a requested instruction is error if: (1) the requested instruction is correct; (2) “it is not substantially covered in the main charge”; and (3) “it is on such a vital point in the case that the failure to give it deprived [the] defendant of a defense or se- riously impaired its effective presentation.” Id. (alteration in original) (citations omitted). For the military judge’s refusal to instruct the members as requested to be error, all three prongs of this Miller test must be satisfied. Id. 2. Analysis Appellant argues first that the military judge’s instructions to the members on the bad-conduct discharge were confusing and conflicting with the standard instructions. The essence of Appellant’s argument is that the military judge erred when he departed from the standard instructions as set forth in the Mil- itary Judge’s Benchbook (Benchbook).2 Suffice it to say, even if we did conclude (which we do not) that the military judge departed from the suggested Bench- book instructions in crafting his punitive discharge instruction, such departure standing alone does not constitute error. To be clear, the Benchbook is a re- statement of law—it is not a substantive or binding source of law itself. As this court has previously explained:

2 Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 (29 Feb. 2020).

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while the Department of the Army Pamphlet 27-9, Military Judge’s Benchbook . . . is widely used as a reference guide, Air Force judges are not obligated to use it. Rather than rely blindly on this pamphlet, judges should ensure their instructions meet the requirements of the Manual for Courts-Martial . . . , the Rules for Courts-Martial, and case law. United States v. Greszler, 56 M.J. 745, 746 (A.F. Ct. Crim. App. 2002). Instead, when evaluating allegations of sentencing instruction error, we look to the Mil- ler factors to determine the propriety of the instruction. Miller, 58 M.J. at 270. Even assuming arguendo that Benchbook “deviations” could themselves constitute error, here the military judge did not substantially deviate from the Benchbook. The following standard instructions are contained in the Bench- book and were substantially utilized by the military judge in this case: You are advised that the stigma of a punitive discharge is com- monly recognized by our society. A punitive discharge will place limitations on employment opportunities and will deny the ac- cused other advantages which are enjoyed by one whose dis- charge characterization indicates that (he) (she) has served hon- orably. A punitive discharge will affect an accused’s future with regard to (his) (her) legal rights, economic opportunities, and so- cial acceptability. Benchbook, at 122. This court may adjudge a bad-conduct discharge. Such a dis- charge may deprive one of substantially all benefits adminis- tered by the Department of Veterans Affairs and the military establishment. A bad-conduct discharge is a severe punishment and may be adjudged for one who in the discretion of the court warrants severe punishment for bad conduct (even though such bad conduct may not include the commission of serious offenses of a military or civil nature.). .... . . . Finally, if you wish, this court may sentence the accused to no punishment. Benchbook, at 123–24. The crux of Appellant’s argument and his chief complaint centers on the additional instruction the military judge added to the above including, A bad-conduct discharge may also be adjudged for one who in the discretion of the court has been convicted repeatedly of minor

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offenses and whose punitive separation appears to be necessary, keeping in mind that the accused is to be punished only for the offenses of which the accused has been found guilty in this court- martial. The addition of this language does not create confusion or contradiction as Appellant avers. This language is straightforward and is found nearly verba- tim in R.C.M. 1003(b)(8)(C), the language the President set forth explaining a bad-conduct discharge. Here, the military judge was aware of his duty to properly tailor his in- structions to the facts and circumstances of the case in front of him. Talking- ton, 73 M.J. at 215. During the presentencing proceedings, evidence of Appel- lant’s letter of counseling, nonjudicial punishment, record of vacation action of suspended nonjudicial punishment, as well as a prior summary court-martial conviction for the same misconduct as the charged offenses was presented. See- ing this, the military judge was well within his discretion to refer to the Presi- dent’s guidance in R.C.M. 1003(b) on a bad-conduct discharge and tailor his instructions to incorporate the guidance that most accurately reflected an issue reasonably raised by the evidence in this case. In other words, the military judge did not err when he utilized relevant and applicable law in his instruc- tions to the members. Appellant argues second that the instruction, particularly the additional language from R.C.M. 1003(b)(8)(C), improperly “bolstered” the Government’s argument that this accused warranted a punitive discharge. The military judge was sensitive to this concern. Trial counsel’s proposed instruction tracked with R.C.M. 1003(b) and read, “It is also appropriate for an accused who has been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary.” (Emphasis added). The military judge softened this language to read, “A bad-conduct discharge may also be adjudged.” This instruction did not improperly bolster the Government’s argument. The evidence reasonably raised an instruction on this issue. This clause of R.C.M. 1003(b)(8)(C) was applicable and an accurate statement of the law. Therefore, the military judge did not err in incorporating it into the instructions.

III. CONCLUSION The findings and sentence as entered are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Ar- ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).

United States v. Pagan, No. ACM S32738 Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court