U.S. Soldier at Trial by Court-Martial in Afghanistan Case Result by Attorney Calcagni

Attorney Calcagni is a criminal defense attorney representing clients in State, Federal and Military Courts.  As former active duty U.S. Army Judge Advocate or military prosecutor, he employs the unique investigative and courtroom advocacy skills he acquired prosecuting Soldiers to now defend them in the military justice system.

The military justice system is a world-wide legal system.  It is so expansive because Soldiers and other service members who are subject to the Uniform Code of Military Justice (UCMJ) are stationed around the world throughout the United States and abroad.  They also serve in both friendly and hostile environments. 

When Soldiers or service members commit criminal acts regardless of their location, the military justice system must be available to adjudicate criminal charges in a manner that does not interrupt or interfere with military operations and missions.  This is done through the world wide application of the military justice system and the military’s ability to prosecute crimes anywhere and anytime.  This is accomplished by convening trial by courts-martial and the availability of military judges, prosecutors and defense counsel to participate in these proceedings wherever they may be conducted.

Contrary to public belief or opinion, the military tries criminal cases in deployed environments such as Iraq and Afghanistan.  When a Soldier or service member commits an offense while deployed, the evidence of the crime, along with the witnesses and law enforcement agents who investigated the offense(s) are also located in the deployed environment or theater of operations. 

Military attorneys or Judge Advocates who prosecute these offenses are stationed there as well.  The military is a self-sustaining organization that deploys with it all internal services to include not only war fighters and combat support troops, but also other Soldiers who provide professional services such as doctors, dentists, and yes, prosecuting attorneys and criminal investigators.  For these reasons, instead of interrupting essential mission operations by sending criminal offenders and related evidence and witnesses from the deployed environment back to the United States for trial, the military often prosecutes offenses that occur on deployments right in theater.

As a former military prosecutor, Attorney Calcagni was deployed to Afghanistan where he prosecuted a wide array of offenses.  Now, as a civilian defense attorney who focuses his practice on defending Soldiers and service members who defend America, he provides criminal defense representation at trials by court-martial on a worldwide basis.  Most recently, he traveled to Afghanistan to represent a U.S. Soldier facing trial by court-martial for multiple offenses to include drug use, violating orders against the possession and consumption of alcohol while in a combat zone, and providing a false official statement to law enforcement agents.

Attorney Calcagni’s client was a Sergeant (E-5) assigned as a Team Leader in an Infantry rifle platoon (hereinafter “Accused”).  The Soldier and his platoon were stationed at a remote Combat Outpost (COP) working side by side with Soldiers of the Afghan National Army (ANA).  The COP is located close to the Pakistani border and surrounded by local Afghan inhabitants in villages that are infiltrated by enemy Taliban forces.  The COP is frequently attacked by enemy small arms and indirect fires.  It is highly fortified with multiple battle positions and occupied by numerous infantrymen. The Accused was assigned as a Fire Team Leader assigned to this COP.  He worked with and had several junior Soldiers under his authority and in his fire team.

The Accused was charged with smoking hashish and distributing it to his fellow Soldiers, most of whom were junior in rank to him.  Once questioned by law enforcement authorities, the Accused admitted to acquiring the hashish from members of the ANA.  Sometimes he purchased the hashish from the ANA and other times he acquired it from them as a gift. 

The Accused admitted to smoking the hashish on multiple occasions including when on important guard duty at the COP.  He also admitted to sharing it with the other Soldiers and smoking it with them on multiple occasions, to include guard duty.   When questioned further about his involvement in misconduct, the Accused confessed to unlawfully receiving through the mail and consuming alcohol. 

While deployed, U.S. Soldiers are precluded from, among other things, possessing and/or consuming alcohol.  Rather than destroy or turn in the alcohol received, the Accused admitted to consuming it.  Military criminal investigators questioned the Accused about other Soldiers’ hashish use.  In effort to protect his friend and fellow young Soldier from getting into trouble for unlawful drug use, the Accused lied that he had not witnessed suspected hashish use by another Soldier under investigation. 

Later, however, in a subsequent statement, the Accused came clean about his false statement to investigators and confirmed their suspicion that the suspected Soldier had in fact smoked hashish.  As a result of his admitted misconduct and other supporting evidence, such as positive urinalysis results for hashish use and corroborating statements by the Accused’s co-accuseds, he was criminally charged.

The Accused was charged with three offenses: (1) Wrongful hashish use in violation of Article 112a, UCMJ; (2) Providing a False Official Statement in violation of Article 107, UMCJ; and (3) Failure to Obey a Lawful General Order, namely, General Order Number 1 (GO-1) for wrongfully consuming alcohol in violation of Article 92, UCMJ. 

These charges were referred for trial to a Special Court-Martial empowered to adjudge a Bad Conduct Discharge.   The Accused faced a maximum potential punishment of one year or twelve (12) months in jail; reduction in rank from Sergeant to Private (E-1); forfeiture of two-third of pay for twelve (12) months; and to be discharged from the service with a Bad Conduct Discharge (BCD) or punitive discharge. 

After being formally charged with these offenses, the Accused and his family made the important decision to hire Attorney Calcagni for criminal defense or military defense representation in this matter.
   
The case proceeded to trial in Afghanistan at Bagram Airfield (BAF).  The Accused opted to plead guilty to the charges.  When an Accused is charged with a crime regardless of severity, there are only three possible outcomes of a criminal charge: (1) dismissal of the charge for insufficient evidence or some egregious procedural or constitutional violation; (2) proceed to trial where a judge or panel (i.e. jury) determines guilty of innocence; or (3) plead guilty and accept responsibility. 

In this case, because the evidence against the Accused was overwhelming, to include his confessions to military investigators and corroborating urinalysis results and statements of co-accuseds, he determined it was in his best interest to plead guilty before a military judge alone, and thereafter, fight for lenience at the time of sentencing.  Based on this decision,  Attorney Calcagni negotiated a pretrial agreement for the Accused that provided for a sentencing cap of five (5) months of confinement. 

Unlike civilian courts, in the military justice system, the prosecution and defense do not normally agree on a sentence incident to a guilty plea or part of a pretrial agreement.  Rather, the Convening Authority or General Officer who decided to send the case to a court-martial normally, in exchange for an accused’s promise to plead guilty, offers to limit the nature or extent of sentence that he approves following the court-martial.  At the time of sentencing, the military judge imposes punishment. 

Depending upon the adjudged punishment, the accused gets the benefit of the lesser sentence: that imposed by the court or that agreed to with the Convening Authority.  In this case, Attorney Calcagni negotiated on the Accused’s behalf that the Convening Authority, regardless of the sentence imposed by the military judge, would not approve any sentence of confinement in excess of five (5) months.

The pretrial agreement allowed the imposition of all other lawful forms of punishment to include a punitive or Bad Conduct Discharge.
   
Once the pretrial agreement was in place, Attorney Calcagni shifted his focus to preparing for the Accused’s guilty plea and most importantly, sentencing hearing that proceeds to guilty plea phase o the court-martial. 

Attorney Calcagni spoke with and interviewed countless friends, family members and other supporters of the Accused. He also interviewed Soldiers with whom the Accused formerly served such as members of the 10th Mountain Division where Attorney Calcagni previously served on active duty when assigned as a military prosecutor or trial counsel. 

Attorney Calcagni worked with nearly three dozen supporters to draft character letters or statements of support on the Accused’s behalf for the military judge’s consideration at the time of sentencing.  Attorney Calcagni also compiled volumes of records such as his client’s education records, medical records, mental health treatment records, substance abuse treatment records, and others related documents.  He also received and reviewed photographs of the Accused’s family who could not attend the court-martial in Afghanistan.  These materials were all consolidated into one packet known as a “Good Soldier Book” for submission to the Court at the court-martial.

Attorney Calcagni interviewed a number of witnesses whose testimony he sought to present at the court-martial.  These witnesses included Soldiers with whom the Accused served at the COP; a Platoon Sergeant whose life the Soldier saved during a recent attack by a rogue ANA Soldier on U.S. Soldiers; and a behavioral health provider with whom the Accused had self-referred for mental health counseling and substance abuse treatment. 

Attorney Calcagni actually presented some of these witnesses live at the Accused court-martial and others’ testimony he presented in the form of what is known as either a stipulation of fact or stipulation of expected testimony. The Accused’s court-martial commenced with the providence or guilty plea inquiry, which is the first phase of the proceeding.  The military judge accepted the Accused’s plea without incident.  Thereafter, the military judge moved onto the second phase of the proceeding and conducted a sentencing hearing. 

The government went first by presenting the testimony of two witnesses: the Accused’s Squad Leader at the time of the misconduct and his Acting Platoon Sergeant from this period.  Both witnesses testified about their disappointment in the Accused and how his misconduct affected the mission and security on the COB. Both Non-Commissioned Officers held the Accused accountable for influencing five (5) other junior Soldiers to smoke hash, all of whom had been criminally charged separately, and along with the Accused, removed from the COP and sent back to the rear for criminal prosecution. The witnesses also testified that this loss in man power of six Soldiers, to include the Accused, increased the workload of the remaining Soldiers on the COP. 

The witnesses opined that the Accused’s actions had caused him to fail himself, subordinates and leaders as an assigned Team Leader and fellow Sergeant or Non-Commissioned Officer.  On cross-examination, each witness admitted during Attorney Calcagni’s questioning that the Accused was an extraordinary Soldier who tactically proficient, a natural born leader, respected by all and reliable in all aspects of combat operations. 

The Acting Platoon Sergeant specifically said that if bullets were flying, the Accused was the Soldier he wanted beside him.  He further testified that the Accused was the type of Soldier who, if a grenade had been tossed in their direction, would be the first person to jump on it in order to save his comrades from harm or injury.  The government rested its sentencing case after these two witnesses testified.

Attorney Calcagni then presented the defense sentencing case.  This began with the offering o the Accused’s Good Soldier Book, which contained countless statements of support, to include one from the former the Accused’s former Platoon Sergeant whose life he saved during the rogue ANA attack; another from a Soldier who the Accused saved on a prior deployment to Afghanistan after he stepped on a victim-detonated improvised explosive device (IED) that caused loss of his leg; and another from the Accused’s former Team Leader with whom he served and who had had also saved in Iraq.  The packet also contained copies of the Accused’s military awards; education transcripts; and numerous photos of the Accused, his family and friends.

Attorney Calcagni also presented video footage documenting his client’s combat experiences while deployed.  The instant deployment was the Accused’s third overall deployment and second time deployed to Afghanistan.  A Dan Rathers Report video existed documenting the Accused’s first tour to Afghanistan where he participated in daily combat patrols in Afghanistan’s Kandahar and southern provinces directly fighting the Taliban. 

The defense also submitted an article documenting the recent suicides of a fellow Soldier with whom the Accused was friendly and who was prevented from deploying for mental health issues, and the obituary of the Accused’s childhood friend who also committed suicide during this deployment.
Attorney Calcagni offered two stipulations of fact to the Court.  The first stipulation documented the Accused’s self-referral for behavioral health counseling and alcohol anonymous meetings since being criminally charged.  The second stipulation documented the case dispositions for his co-accuseds.   
Two of the co-accuseds’ cases were also referred to trial by Special Court-Martial empowered to adjudge a Bad Conduct Discharge, which sentenced each of them to a reduction in rank and four (4) months of confinement.  Two of the co-accuseds were not prosecuted via court-martial, but instead received non-judicial punishment in accordance with Article 15, UCMJ. 

The last of the co-accused referred for trial by Summary Court-Martial and subsequently would be administratively separated from the Army with an Other Than Honorable (OTH) discharge or characterization in service. 

Attorney Calcagni also presented three (3) stipulations of expected testimony.  These witnesses were unable to testify live at the court-martial in Afghanistan.  As a result, the parties agreed to what their testimony would otherwise be had they appeared in person.  Two of these witnesses were the co-accused – two junior Soldiers with whom he had smoked the hashish. 

Each testified that they were not influenced or encouraged by the Accused in any way to smoke hashish.  They made this decision voluntarily and of their own volition.  The defense offered this evidence to refute arguments and allegations by the government that the Accused was responsible for his junior co-accused’s misconduct.

The third and last witness who testified by stipulation of expected testimony was a former member of the Accused’s team back in garrison.  This witness testified of his prior struggle with drug addiction for which he self-referred to the Army Substance Abuse Program (ASAP).  The former addict credited the Accused for giving him the encouragement and motivation to complete ASAP.  He also credited the Accused for mentoring him to remain in the U.S. Army and pushing him to excel and pursue greater positions within the Army, which later resulted in his promotion to Team Leader.

The defense then presented the testimony of four live witnesses: two of the Accused’s former Squad Leaders under whom had served as a Team Leader and his most recent first-line supervisor with whom he worked after removal from the COP.  All of these witnesses provided astounding testimony on the Accused’s behalf.  Attorney Calcagni interviewed each of them beforehand to ascertain their experiences, observations and opinions of the Accused.

All three witnesses said that regardless of the Accused’s admitted misconduct, they would gladly serve with him again.  They all believed the Accused made a mistake, but was capable of rebounding from his lapse in judgment and with the right guidance and mentorship, could meaningfully serve in the Army again. 

The former Squad Leaders provided testimony that the Accused was an extremely knowledgeable Soldier who was tactically sound, an expert in the field, and a natural born leader.  They each also testified that he was autonomous, trustworthy and had great duty performance.  One former Squad Leader said he would give the shirt off of his back for the Accused.  The other credited the Accused for his squad having received awards and accolades for combat related training exercises prior to the deployment. 

The third witness, the Accused’s current first line supervisor, had only known him for about one month.  However, during his time, the Accused had made a strong first impression by his work ethic, commitment to duty, professionalism and reliability. 

Because of this, the witness chose the Accused to participate in three fallen comrade ceremonies and what are known as “hero flights“ where the military provides final honors to fallen comrades whose remains are being returned to their families for burial services.  This witness also told the Court that he was personally acquainted with other Soldiers who had overcome drug addictions and remain in service today.  The first line supervisor testified that he believed the Accused would do the same. 

The defense lastly presented the Accused’s testimony.  He testified on his own behalf about a multitude of extenuating and mitigating factors.  He informed the Court that he had come from a broken home where his parents had divorced at a young age.  He also relayed his family background to include his numerous siblings and stepsiblings, one of whom was a victim during the infamous Columbine High School shooting. 

The Accused talked about his friend and former Soldier, both of who had committed suicide during this deployment.  He also talked about personal circumstances such as a prior girlfriend whom he had impregnated and who gave up the child for adoption without his consent or knowledge.  He even mentioned his fiancé, for unknown reasons and without warning, had broken off their relationship in the weeks leading up to his court-martial. 

The most moving testimony by the Accused related to his military service.  He detailed his experienced from three separate deployments all which were rife with enemy engagements and the horrific faces of war such as death and dismemberment.  The Accused talked about the enemy lives he had taken, the friendly lives that were lost, and his acts of valor and heroism throughout it all.  He ended by offering a sincere apology to the Court and all others present for his actions.  The defense then rested its sentencing case.

The government sought to offer rebuttal evidence.  However, each of the prosecutor’s attempts to offer rebuttal was defeated by Attorney Calcagni’s objections. In the end, the parties presented their competing sentencing arguments.  The government argued for a sentence of nine (9) months of confinement, reduction to the grade of Private (E-1) and a Bad Conduct Discharge.  In support of this request, the prosecutor emphasized the accused’s misconduct while in a leadership position, influential of junior Soldiers who committed similar misconduct with the Accused’s knowledge and participation, all the while conducted in the face of enemy danger while stationed at a hostile, remote Combat Out Post. 

The defense retorted that the government’s sentencing request devalued and disregarded the extent and quality of the Accused’s military service, most of which was spent conducting combat operations.  Attorney Calcagni argued that his client was a silent casualty of armed conflict who bore invisible wounds and scars from the things he had done, places he has gone and wartime experiences endured. 

He emphasized to the Court that until you have carried a rife on patrol in enemy territory, taken the life of another, and had a comrade’s blood on your hands, we could not begin to understand and appreciate the depth of the Accused’s military service.  In closing, Attorney Calcagni agreed that a reduction in rank was warranted by the nature and circumstances of the admitted misconduct, but that a punitive discharge could not be imposed.

After approximately one hour of deliberations, the military judge delivered his sentence.  He adjudged a reduction to the rank of Private (E-1) and imposed 180 days of confinement.  The Court did not impose a punitive discharge.  Because of the pretrial agreement, however, the Accused’s confinement was limited to five (5) months.  The Court also awarded the Accused’s eleven (11) days of jail credit for unlawful pretrial punishment agreed to by the parties.  With good time and other sentencing credit, the Accused will spend approximately 100 days in confinement.  Thereafter, unless administratively separated from service, he will return to his unit since the Court did not impose a Bad Conduct Discharge.  Congratulations to this Accused and notable war veteran.

Wife Testimonial for Criminal Defense Attorney Calcagni

If you have been charged with a crime in RI and need assistance, contact Criminal Defense Attorney John L. Calcagni at (401) 351-5100 now for a free consultation.

“When I found out that my husband had been arrested, I was very frightened. I didn’t know what to do or whom to call. I found Attorney John Calcagni’s website. I called him, praying that he would be the one for my husband’s case and thank God that’s how it was, from the first time I tried to contact him, he returned my call immediately, he was very honest with me, very professional, very attentive and very patient, especially since my English is not very good.  He was always very worried about me and encouraged me to be calm. He always answered my calls and while my husband was in jail, he always did excellent work and thanks to him, today my husband is once again at home with me and our daughter.  I don’t know how to express the gratitude I feel for Attorney Calcagni.  He is an excellent human being and an excellent lawyer.  I am very satisfied with his work and the results he obtained for my husband.  I am infinitely thankful for Attorney Calcagni’s dedication.  I heartily recommend the services he provides.  God bless you and many, many thanks.” - CR, Grateful Spouse of SM

Criminal Defense Attorney Client Testimonial

If you have been charged with a crime in RI, contact Criminal Defense Attorney John L. Calcagni at (401) 351-5100 for a free consultation.

“This testimony is to express my sincere gratitude to Mr. John Calcagni for his excellent work, his honesty and all the effort that he dedicated to my case.  From the beginning, he always sought out the most effective way to reunite me with my family as quickly as possible, something which he succeeded in doing. I always noticed that he would put himself in my situation and understood perfectly my pain and desperation; as a lawyer, he is excellent and as a person, I have not met many like him in my life.  After all the experiences which I had with him, and I know how painful it is to be incarcerated, I strongly recommended him and will continue doing so since he is someone who is totally honest, intelligent and someone who works diligently for the sake of his clients and their families. I am extremely grateful to him as a friend and as a client for all his effort, understanding and good will. From the bottom of my heart, many thanks.” - DM

Psychiatric Patient Who Attempts to Escape Hospital Charged with Eight Counts of Assault, Battery and Destruction of Property: Pretrial Probation.

A young man was taken by family members to a hospital emergency room after complaining of suffering from hallucinations.   The young man had a history of mental illness and recently underwent a change in his medication.  After being admitted to the emergency room, the man attempted to escape from the hospital.  He struck and assaulted multiple hospital employees in the process, including nursing staff and security officers, and he knocked over patients and visitors, some of whom were elderly.  The man also broke a glass window, from which he sought to escape.  Hospital security staff and health care providers successfully restrained the man, sedated him with medication, and admitted him to the psychiatric ward for one week.  Following his release, the man was charged by the Commonwealth of Massachusetts with the following offenses: Count (1) Wanton Destruction of Property in violation of M.G.L. c 266, § 127; Counts (2) and (7) Assault and Battery on a Public Employee in violation of M.G.L. c 265, § 13D; Count (3) Assault and Battery in violation of M.G.L. c 265, § 13A(a); Counts (4) and (5) Assault and Battery upon an Elderly or Disabled Person in violation of M.G.L. c 265, § 13K(b); Count (6) Breaking Glass in a Building in violation of M.G.L. c 266, § 114; and Count (8) Disturbing the Peace in violation of M.G.L. c 272, § 53.   The young man retained the services of Attorney John L. Calcagni III to represent him in connection with these charges.

Attorney Calcagni’s strategy in this case was to educate the prosecutor of his client’s mental health condition.  Ultimately, if this matter proceeded to trial, he intended to defend the young man on grounds of lack of mental responsibility or insanity.  This defense allows one to avoid criminal responsibility where, due to a severe mental disease or defect, one is incapable of forming the necessary intent or mental state required to be guilty of committing a crime.  Attorney Calcagni requested and obtained full records of his client’s mental health history.  Attorney Calcagni also interviewed both the client’s psychologist, with whom he attends counseling, and psychiatrist, who prescribes his antipsychotic medication.   Both providers also provided letters of support on the client’s behalf. 

Attorney Calcagni used this information to persuade prosecutors to dismiss the eight charges for Assault, Battery, and Destruction of Property against the young man.  He argued that, based on the medical evidence of the man’s mental illness, the Commonwealth would lose at trial and the man would be found not guilty for reasons of lack of mental responsibility.  Prosecutors agreed, and counter offered a proposal for a straight dismissal with an offer to place the man on pretrial probation for one year.  A disposition of pretrial probation does not involve an admission of guilt or any responsibility whatsoever.  Rather, the individual’s case remains open for a period of time during which he may or may not be required to comply with special conditions.  In this case, prosecutors offered to place Attorney Calcagni’s client on pretrial probation for 12 months during which time the young man would simply have to continue his ongoing mental health treatment.  At the end of this term, providing the man fulfills this obligation and is not charged with a new offense, his case will be dismissed and he will not incur a criminal conviction from this incident.  Congratulations to this client.

Large Scale Drug Trafficker Who Faced Possible 40-Year Sentence Released on Time Served After Spending 17 Months in Jail.

A man believed to be associated with an international drug trafficking organization was apprehended in connection with a seizure of more than 650 pounds of marijuana.  He was then charged by federal authorities for being part of a drug conspiracy.  The man faced a possible sentence of 40 years in jail.  However, after retaining Attorney John L. Calcagni III, he received a remarkable sentence of time served after spending only 17 months in jail. 

A Drug Enforcement Administration (DEA) Task Force (TF) comprised of local and federal law enforcement agents conducted a long term investigation regarding a known drug trafficker (hereinafter “KDT”).  KDT was previously convicted of cocaine-related charges some time ago.  He served a jail sentence and had since been released.  TF agents began watching him closely again based on suspicions that he had returned to selling drugs.

In March 2011, agents conducted surveillance of KDT.  They followed him from his home to a mall in Providence, RI.  KDT traveled there in his personal vehicle accompanied by a second unidentified Hispanic male.  Upon arriving at the mall, agents observed a third unidentified man get into the known trafficker’s vehicle (hereinafter “Mr. X”).  The three men then returned to KDT’s apartment.  Sometime later, agents observed KDT depart from his apartment accompanied by two additional Hispanic males.  The three men traveled to a truck rental agency and rented a commercial box truck.  The men then returned to KDT’s apartment – KDT and one unidentified male were in KDT’s vehicle and the second unidentified male (third male in total) operated the box truck. 

Approximately one hour later, agents observed Mr. X emerge from KDT’s apartment and enter the box truck.  He proceeded onto the interstate highway and traveled several miles to a roadside hotel.  Mr. X exited the box truck and walked into the hotel.  Less than one hour later, Mr. X emerged from the hotel with two additional unidentified males (hereinafter “Mr. Y” and “Mr. Z”).  The three men entered the box truck with Mr. X as driver.  The three men proceeded back onto the interstate in the opposite direction from which Mr. X had come.  They got off the highway several miles away and drove into the parking lot of a Home Depot Store.  They then exited the truck and went into the store.   Once inside, agents observed Mr. X purchase two pairs of work gloves.  After this purchase, the men got back into the box truck, this time with Mr. Y driving, and drove down the roadway.  At this time, Mr. X sat in the middle and Mr. Z sat in the passenger seat.  About one mile down the road, the box truck came to a stop.  Mr. X exited the truck at an intersection and proceeded to walk into a nearby donut shop.  Mr. Y and Mr. Z drove off in the box truck and traveled several miles to a commercial shipping depot.  Upon arrival, the box truck proceeded into the shipping depot’s parking lot and drove around to the back of the warehouse, presumably to a loading dock.  Law enforcement agents performing surveillance of these events lost sight of the vehicle for approximately 15 minutes. 

After several minutes, the box truck emerged again and departed from the shipping depot.  Law enforcement agents on surveillance radioed for the assistance of uniformed patrol officers after concluding that the box truck had likely picked up a large shipment of drugs at the depot.  The lead agent of this investigation advised the patrol officers to find probable cause required to conduct  a traffic stop and to in fact stop the box truck.  The lead agent also radioed for the assistance of a K9 drug detection dog to come on scene after the truck was stopped.  Moments after leaving the shipping depot, and only a few miles down the road, a uniformed officer stopped the truck on the basis that it allegedly “failed to use a turn signal while turning.”  The truck pulled over without incident and into a residential driveway.

Once the truck came to a stop, the uniformed officer approached the driver’s side.  The driver, Mr. Y, emerged and encountered the patrol officer.  Mr. Z, who the uniformed officer did not notice at first, quietly exited the passenger side while the officer was tending to the driver.  He then ran several yards away from the scene and entered a gas station convenience store.  Undercover agents on surveillance observed Mr. Z’s actions and apprehended him in the gas station.  The patrol officer who stopped the vehicle ultimately placed Mr. Y under arrest, as he was operating a motor vehicle without a valid driver’s license. 

While the box truck was secured and before the K9 arrived, TF agents located Mr. X who was sitting in the nearby donut shop while sipping coffee and eating a donut.  Agents then radioed for the assistance of additional uniformed officers, who they advised that Mr. X was wanted for questioning in connection with an ongoing investigation.   According to independent witnesses, the uniformed officers surrounded the donut shop and entered it with their weapons drawn.  As they stepped through the door, one of the officers loudly announced “put your hands up” and “don’t move.”  Another officer immediately proceeded to handcuff and detain Mr. X, who was then secured in the backseat of a police cruiser and whisked away to a nearby police station.

A K9 officer and his drug detection dog arrived on scene after all three men (Mr. X, Y and Z) were taken into custody.  The K9 officer released his dog and gave it a command to search for drugs in the rear compartment of the box truck.  The compartment contained two large pallets piled high with plastic crates that were wrapped in cellophane.  The pallets had shipping labels indicating they initiated from San Diego, CA.  The K9 dog entered the truck compartment and alerted to the presence of drugs inside the crates.    Officers then secured the truck and transported it to a nearby, secret evidence collection warehouse for further analysis.  The TF agents dismantled the pallets and opened the separate plastic crates stored thereon.  Each crate contained a cardboard box and two vacuumed sealed bundles of marijuana.  In total, the officers discovered 12 crates and boxes and 24 bundles of marijuana that weighed in total more than 655 pounds. 

The discovery of the marijuana formed the basis of federal criminal charges against the men, including Mr. X, for engaging in a drug conspiracy.  Specifically, the federal government through theU.S. Attorney’s office charged Mr. X with Conspiracy to Possess with Intent to Possess and Distribute More than 250 Kilograms of Marijuana, and Possession with Intent to Distribute More than 250 Kilograms of Marijuana.  These charges carried a mandatory minimum jail sentence of five (5) years and a potential maximum sentence of (40) years.  Mr. X was arraigned on these charges. Because of the nature of the drug charges and potential exposure on sentencing, he was held without bail. 

On the day of his arrest, Mr. X left his home and family, including his wife and then 8-month old daughter, in their San Diego, CA apartment.   He boarded a flight bound for Boston, MA and had every intention of returning within a few days.  To his surprise, he was arrested by federal authorities, charged with federal drug offenses, and held without bail.  When Mr. X’s wife learned of her husband’s circumstances, she immediately boarded a flight to the east coast.  Upon arrival, she began researching criminal defense lawyers who she thought could help her husband.  She sought an attorney who specialized in criminal defense, was well-known in the New England area, had extensive trial and federal court experience, and was honest, ethical and reliable.  She ultimately retained the services of Attorney John L. Calcagni III to represent Mr. X.

Attorney Calcagni outlined a strategy to defend Mr. X that first involved filing a motion to challenge his arrest and to suppress items discovered on his person, including multiple cell phones and a plane ticket that showed he flew to Boston from San Diego – the same place from where the pallets of marijuana originated.  Attorney Calcagni filed the motion alleging the Mr. X was unlawfully arrested in the absence of probable cause – i.e. there was no factual basis to believe a crime had been committed.  The government objected to this motion and the Court held an evidentiary hearing.  Though the Court agreed with Attorney Calcagni’s assertion that Mr. X was arrested in the absence of probable cause, the Court upheld the arrest on alternative grounds, thereby saving the government’s case against Mr. X from dismissal.  Attorney Calcagni’s next step in defending Mr. X was to negotiate a pretrial agreement after his client decided to plead guilty.  Attorney Calcagni negotiated an agreement that permitted Mr. X to plead to one count of engaging in a drug conspiracy in exchange for the dismissal of the remaining counts regarding Possession with Intent to Distribute More than 250 Kilograms of Marijuana.  The pretrial agreement also enabled Attorney Calcagni to argue at sentencing for less than the mandatory minimum jail sentence of five (5) years.

After Mr. X’s guilty plea was accepted by the Court, Attorney Calcagni shifted focus to one area of federal criminal practice that he masters – sentencing preparation.  He began by traveling to Tijuana, Mexico, where Mr. X was born, in order to spend time with his client’s family.  Attorney Calcagni flew from Providence, RI to San Diego, CA and crossed the United States / Mexico border on foot to Tijuana.  He then traveled to the neighborhood where Mr. X’s family resides, including his wife and young daughter. After Mr. X’s arrest, his wife and daughter were forced to leave their San Diego apartment and reside with other relatives in poverty stricken Tijuana.  Attorney Calcagni met with and interviewed his client’s family members, obtaining character statements and letters of support from them on Mr. X’s behalf for the Court’s consideration at Mr. X’s sentencing. 

Attorney Calcagni documented with photographs their homes, living conditions, and the neighborhood along the border where Mr. X grew up as a child.  After returning from Mexico, Attorney Calcagni spent time preparing Mr. X for sentencing.  This included drafting a letter by Mr. X to the Court accepting responsibility for his actions and documenting his self-rehabilitative efforts while incarcerated awaiting sentencing, such as working in the prison kitchen, attending weekly classes in U.S. History, and going to mental health counseling.  Attorney Calcagni lastly memorialized all of his sentencing efforts by drafting and submitting to the Court an important legal document called a sentencing memorandum.  This important document is submitted to the Court by both the defense and the government, outlining their respective sentencing arguments and punishment requests.

The final stage of Attorney Calcagni’s representation of Mr. X was at his sentencing hearing.  The government recommended to the Court that Mr. X receive a prolonged jail sentence.  In support of its request, government lawyers emphasized the quantity of marijuana seized by TF agents, its high street value, and Mr. X’s membership in a sophisticated large drug trafficking organization that had the resources, knowledge and client base to coordinate the cross-country transportation of large quantities of marijuana.  In response, Attorney Calcagni retorted that a prolonged or further jail sentence of Mr. X was unnecessary.   He cited persuasive facts, such as that Mr. X was a first-time offender and he played a minimal role in the charged misconduct in that he was not even found to be in possession of the drugs or in the truck that contained them when it was stopped by police.  Attorney Calcagni also argued that Mr. X had accepted responsibility and had engaged in multiple self-rehabilitative efforts while incarcerated. 

Lastly, and perhaps most persuasively, he showed the Court Mr. X’s family.  Attorney Calcagni showed the Court the family’s dangerous and poverty stricken living conditions in Tijuana. He showed the Court how Mr. X came from those same conditions and will return to them once released.  Attorney Calcagni also showed the Court that, while incarcerated, Mr. X had missed 17 months of his now 2 year-old daughter’s life.  Attorney Calcagni emphasized that the collateral punishment of missing his young daughter’s two birthdays, multiple holidays and countless “first time moments” were more punitive to a father than any jail sentence the Court could impose.  At the end of the hearing, the Court sided with Attorney Calcagni by sentencing Mr. X to time served (17 months) and a period of supervised release.  Congratulations to Mr. X on this exceptional result.

United States Military Academy (USMA) Cadet Sexual Assault Case Results

United States Military Academy (USMA) Cadet Charged with Sexual Assault: Not Guilty of a Sex Offense and Retained for Further Military Service.

The government charged a third-year student or Yearling at the United States Military Academy (USMA), West Point, New York, with multiple charges of sexual assault against a fellow cadet.  These charges were referred for trial by General Court-Martial.  The accused cadet offered to plead guilty to the lesser included, non-sex offense of Assault Consummated by Battery.  A military judge accepted this plea, and after a sentencing hearing, ordered that the cadet receive a written reprimand, but no further punishment.

The third-year cadet (hereinafter “the accused”) was alleged to have sexually assaulted another female cadet while on a class field trip.  The two cadets sat next to each other in the back row of a 12-passenger van.  The van was otherwise full of West Point Cadets and operated by a faculty member.  The two cadets, the accused and the victim, were no more than classmates and had only known each other for the academic semester.  They had no prior friendship or romantic relationship.  They also had never socialized outside of the classroom.  All of their interaction and communication was professional in nature and centered on their class.  On the date in question, the class to which they belonged took a day-long field trip from the West Point military academy to a nearby Buddhist monastery.  The accused and victim sat next to one another in the back row of the van both on the way to the monastery and on the return trip back to the academy.

All personnel on the van were asleep during the return trip except the driver and the accused.  The victim and accused sat next to one another in the rear of the van.  The accused sat to the left of the victim and closest to the window.  The victim, who was asleep, sat to the accused’s right.  Next to the victim, on her right, sat another female cadet who was also asleep.  The victim alleges that she woke up to find the accused’s hand inside the back pocket of her pants and caressing her buttocks.  She shifted her body away from him and towards the female cadet sleeping to her right without opening her eyes or saying a word.  She then alleged that she felt the accused’s hand caress her inner thigh.  In response, she sat up straight, but again did not open her eyes or say a word.  Lastly, she alleged that the accused attempted to place his hand in hers, but that she pulled her hand away.  After the van returned to the academy, the cadets parted ways without exchanging any words.

In the following days, the accused sent three separate emails to the victim.  In each message, he apologized for his conduct and sought the chance to apologize to her in person.  She never replied.  The accused also left a voice message on the victim’s cell phone, also seeking the chance to apologize in person; however, she never returned his call.  The victim reported what occurred on the van, as well as the accused’s follow-up communications, to her chain of command, an Army chaplain, and the Army Criminal Investigation Division (CID).  As a result, an investigation ensued.  Thereafter, the government charged the accused with three separate counts of Sexual Assault and referred these charges for trial by General Court-Martial.

The accused and his family hired experienced military Defense attorney, John L. Calcagni III, for representation in this unfortunate event.  Attorney Calcagni began his representation of the accused by acquiring and analyzing the strength of the government’s evidence against him.  The evidence consisted of the victim’s timely reports to the chaplain, chain of command, and CID; the accused’s admissions in his emails and voicemail to the victim; and an overall lack of motive or reason to fabricate by the victim.   After conducting a thorough review, Attorney Calcagni advised his client to enter into a plea agreement with the government, opposed to proceeding to a contested trial before either a military panel or a military judge.

Attorney Calcagni, with the accused’s permission, negotiated with the government regarding the terms of a pretrial agreement.  He successfully persuaded the government to agree to allow the accused to avoid a conviction of a sex offense.  Sex offense convictions and their resulting registration requirement are considered lifelong stigmas from which offenders are prejudiced and discriminated against by society.  Because of this, Attorney Calcagni’s primary objective, at the outset of his representation, was for his client to avoid a criminal conviction for a sex offense.  Attorney Calcagni convinced the government to allow the accused to plead guilty to the lesser included, non-sex offense, of Assault Consummated by Battery.  He also convinced the government that no matter the sentence to be imposed after trial, the General Court-Martial Convening Authority would not approve or impose a sentence against the accused, as it relates to confinement, in excess of ninety (90) days.  This agreement was reduced to writing and signed by the parties.

With a pretrial agreement in place, Attorney Calcagni’s next objective was to prepare a sentencing case on his client’s behalf that would place him in the best possible position to avoid jail and a punitive discharge (i.e. dismissal) from USMA, the U.S. Army and further military service.  Attorney Calcagni worked with his client to interview dozens of the accused’s supporters to include family members, many of whom were military service members; faculty members; fellow cadets, civilian friends; and the accused’s counselor to whom he self-referred for therapy following the assault.  Attorney Calcagni also traveled to West Virginia to spend time with and interview the accused’s family; to see where the accused lived and was raised; and to acquire other sentencing evidence.

Attorney Calcagni encountered a lot of love and compassion for the accused from all of his supports who were both males and females alike.  With the assistance of the accused and his many supporters, Attorney Calcagni assembled a large collection of sentencing evidence, which he compiled into a book or pamphlet known as a “Good Soldier Packet” for presentation to the Court.  The accused’s Good Solder Packet included statements of support; academic information, which showed the accused’s top performance and class rank (6 / 248) in high school; Dean’s List performance at USMA; and Commandant’s List at the United States Military Academy Prepatory School (USMAPS); military performance such as being the distinguished graduate at U.S. Army Basic Training and USMAPS; his counseling attendance; military awards; photographs; and other information.

On the day of the court-martial, which was before a military judge alone, the proceedings began with the guilt phase of the case of the proceedings.  The accused pleaded guilty to Assault Consummated by Battery without incident.  The military judge accepted his plea and proceeded to a sentencing hearing.

At a sentencing hearing, the government is allowed to first present evidence of aggravation regarding the accused’s offenses.  The Defense is allowed to challenge and rebut this evidence, as well as cross-examine government witnesses.  Once the government concludes it presentation of evidence, the Defense is then afforded the chance to offer evidence of extenuation and mitigation regarding the accused in general, as well as his offenses.  The government is allowed to challenge the Defense evidence and cross-examine witnesses.  Once the parties conclude their respective presentations of evidence, each side is allowed to make a sentencing argument to the Court.

In this case, as in all sentencing cases, the government began with its case of aggravation, which was comprised of two witnesses: the accused’s tactical officer or supervisor and the victim, both of whom Attorney Calcagni cross-examined.  The government first presented the supervisor who testified very briefly that in his opinion the accused’s military service had been poor.  On cross-examination by Attorney Calcagni, the supervisor admitted that he was unfamiliar with: the accused’s exceptional academic record and performance; the military awards he had received, to include Air Assault School and the German Proficiency Badge, both which the accused earned in the same summer; and his placement as distinguished honor graduate of both basic training and USMAPS.  The supervisor further admitted that most of his interactions with the accused involved the pending court-martial, which formed the basis of his biased opinion.

Next, the government presented the victim who testified about how the accused’s actions impacted her life.  She testified that as a result of his actions, she could no longer trust others to include men and fellow cadets.  She also testified how her intimate life with her fiancé had been destroyed, and that all aspects of her cadet life were adversely affected to include academics, leadership and athletics.  Attorney Calcagni cross-examined her to confirm that she never set verbal or physical boundaries for the accused after discovering his hand on her body; never replied to any of his apologies; had successfully graduated West Point since the incident, and even participated in competitive athletic events during the weekend of the assault; and lastly, that she found the accused’s personality to be quirky and nerdy.  The government offered no further evidence in aggravation.

Attorney Calcagni, on behalf of the accused, then presented the Defense case of extenuation and mitigation.  The Defense case consisted of a Good Soldier Packet, which is described above, and the testimony of six witnesses:  the accused’s father, a U.S. Army Sergeant First Class; the accused’s mother, a former Soldier; the accused’s sister, a U.S. Army Captain and West Point graduate; two field grade female officer faculty members from West Point; and the accused himself.  In essence, the family witnesses all testified that the accused was someone who embodied the Army Values, and had so embodied them long before joining the Army or attending West Point.  The witnesses also testified to the accused’s lifelong goal of joining the Army, which began when he was in junior high school, and later materialized with him enlisting and attending basic training as a high school student, and later matriculating at USMAPS and USMA. 

These witnesses all testified that the accused, though 20 years-old, have never had a girlfriend and had never been romantically, sexually or intimately involved with a woman.  The field grade officer, female faculty members described the accused as the consummate gentleman, but somewhat immature in terms of male-female relations.  Everyone testified that the accused made a serious mistake or lapse in judgment from which he had learned a great deal and had and had grown stronger.  They also opined that despite this sole instance of misconduct, the accused had the potential to still make an exceptional military officer if retained in the Army and at USMA.  The accused echoed the testimony of his witnesses and made an oral apology in open court to both the victim and all others whose lives were impacted by this case.  After the accused testified, the Defense concluded its case of extenuation and mitigation.

After the presentation of evidence, both parties presented argument and sentencing recommendations to the Court.  The government argued for a sentence consisting of six months of confinement and a dismissal from the U.S. Army and academy.  Attorney Calcagni artfully rebutted this argument and asked, in the alternative, for a written reprimand, but no jail or dismissal.  The Court then closed for deliberations.  The military judge returned nearly one and one-half hours later with her verdict and sentenced the accused to be reprimanded only – the sentence recommended by and argued for by Attorney Calcagni.  The military judge did not impose any confinement or a dismissal.  This outstanding result is considered a victory for the Defense.  Congratulations to this fine cadet and best of luck to him throughout his military career.

What should I expect at my Dangerousness Hearing?

A dangerousness hearing is held to determine whether or not you are a flight risk, or a danger to the community at large. The outcome of this hearing will determine whether you will be allowed to post bail or be held without bail.

The factors that a judge will take into consideration at a dangerousness hearing include:

• the type of crime and the circumstances around the offense

• ties to the community you may having including family, career, and obligations

• your mental and physical health, as well as your reputation in the community

• if you have a criminal record or prior convictions the nature of past offenses will be considered

• the statutory sentence guidelines for the crime

• whether you have any addictions or substance abuse history

• whether you have had any prior bail violations or violations of a court order involving the current crime

• any parole or probation violations

• an assessment of the risk involved in allowing you to be released, the severity of any danger present to the community or risk to interference in the investigation into the current crime

Even if your crime is minor and you feel there would not be concern for the judge to hold you without bail, it is important to obtain the advice of a Criminal Defense Attorney prior to your dangerousness hearing. If you need the assistance of an experienced and qualified Dangerousness Hearing attorney, contact John L. Calcagni at (401) 351-5100 now for a free consultation.