U.S. Marine Charged with Fraud; Conspiracy; and Making False Official
Statements: No Jail or Punitive Discharge After Trial by Court-Martial.
A U.S. Marine who deployed in support of
Operation Iraqi Freedom (OIF) and was pending a
medical discharge for
service-related injuries was charged with violating the
Uniform Code of
Military Justice (UCMJ). While on terminal leave awaiting his final
medical discharge paperwork, the Marine was placed on legal hold pending
the outcome of a
Naval Criminal Investigative Services (NCIS)
investigation.
The investigation began following report of missing automotive and
mechanical tools from the Marine’s unit inventory. The unit’s official
inventory documented that several toolboxes were assigned to the unit.
However, there were fewer toolboxes physically present at the unit than
the number listed on the inventory. Because of the discrepancy, the
Marine’s Commander instructed him to “get” the missing toolboxes off of
the inventory. The Commander directed this in advance of an inspection,
which would have revealed the missing toolboxes to other Marine
officials.
In order to follow his Commander’s order, the Marine was tasked with taking a quantity of toolboxes to
DRMO. In order to remove the toolboxes from the unit inventory, the equipment needed to be transferred to
DRMO. The Marine also knew that if the quantity of toolboxes brought to
DRMO did not match with the quantity of toolboxes listed on the inventory,
DRMO
representatives would note the discrepancy and report it to the unit’s
Battalion leadership, which would prompt an investigation. The Marine
believed his Commander was aware of this potential consequence, which is
why the Commander said “I don’t care what you do or how you do it, just
get the toolboxes off of my inventory,” or words to that effect. The
Marine believed his Commander had asked or instructed him, albeit
implicitly, to falsify paperwork related to
DRMO and the unit inventory. The
NCIS investigation revealed that after the Marine received his marching orders, he did just that by falsifying a
DRMO
sheet to reflect that the quantity of toolboxes that was turned in
matched the unit inventory. The Marine conspired with another service
member to falsify this documentation. Once the false
DRMO documents were created, the Marine transmitted them to Battalion. When questioned by
NCIS, the Marine was fully cooperative, accepted responsibility for his actions, and admitted to his role in this misconduct.
The Marine was charged with several violations of the
UCMJ including one charge and two specifications of Making a False Official Statement for creating the false
DRMO documentation in violation of Article 107,
UCMJ;
one charge and two specifications of
Conspiracy to Make a False
Official Statement regarding the same; one charge and one specification
of
Larceny of Government Property in violation of Article 121, UCMJ; and one charge and one specification of
Wrongful Solicitation to Steal Government Property in violation of Article 134, UCMJ. These charges were referred for trial by
Special Court-Martial Empowered to adjudge a Bad Conduct Discharge (BCD).
After the initiation or preferral of charges, the Marine retained Attorney John L. Calcagni
III
as his civilian military defense counsel. The Marine had nearly nine
years of active duty service; a wife and four children; and was recently
awarded both a medical separation from the U.S. Marine Corps with a
substantial severance payment and a permanent Veteran’s Administration
(VA) disability rating with lifetime benefits. If adversely discharged
as a result of
UCMJ action or criminal
charges, the Marine faced the possibility of losing these important
financial benefits. He also faced the possibility of being reduced from
the rank of Sergeant (E-5) to Private (E-1); 2/3 forfeiture of pay and
allowances for 12 months; confinement for up to one year; and discharge
from the
USMC with a Bad Conduct Discharge.
The Marine retained Attorney Calcagni to defend him against the pending
criminal charges and to minimize the impact that the court-martial would
have on his career, family, and overall life.
After conducting an independent investigation and analyzing the
government’s evidence against the Marine, Attorney Calcagni and his
client decided that the most prudent course of action was to negotiate a
pretrial agreement with the government. The goal was to reach an
agreement that protected the accused Marine from many of the possible
forms of punishment that could be imposed by
court-martial, to include a
Bad-Conduct Discharge and reduction in rank, both of which could impact
his medical disability benefits, and lengthy jail time. Negotiating a
pretrial agreement that contained these provisions was not easy. This
challenging process took many months. Attorney Calcagni’s main
objective was to spare his client from losing the medical and financial
benefits he had already been awarded, and which could possibly be lost
after trial.
After extensive negotiations, Attorney Calcagni, on behalf of the
Marine, and the government entered into a pretrial agreement which
called for the accused to accept responsibility and plead guilty to
Making a False Official Statement and Conspiracy to do the same with
respect to the false
DRMO paperwork. In
exchange, the government (i.e. Convening Authority) promised to
disapprove any portion of the sentence adjudged at court-martial that
included confinement in excess of 60 days; any forfeiture of pay and
allowances; any reduction in rank; and a punitive discharge. This
ironclad deal greatly favored the Marine. Simply put, this deal exposed
him to the possibility of 60 days of confinement and no additional
punishment. With this pretrial agreement in place, the Marine tendered
his plea before a military judge who accepted it and adjudged him
guilty.
Following the plea phase of the case, also known as the Providence
inquiry, the case proceeded to the sentencing phase of the
court-martial. The government went first by offering as sentencing
evidence the Marine’s handwritten sworn statement to
NCIS and a video recording his
NCIS
interview. Attorney Calcagni objected to these items as cumulative or
duplicative in nature, as well as containing irrelevant information and
materials extraneous to the charged and admitted offenses. The military
judge presiding over the proceedings sided with Attorney Calcagni in
part by considering only a few paragraphs of the accused’s six-page
statement and one and one-half minutes of his three-hour
NCIS
video interview. The government then called its one and only
sentencing witness, a junior Marine, who offered little to no evidence
about the accused. This military judge, after listening to the
testimony, ultimately rejected it as inappropriate and not relevant to
the proceedings. The government then rested its case.
After the government rested, Attorney Calcagni presented the defense
portion of the sentencing case. He began by offering four exhibits
which contained the Marine’s personnel records; exemplary fitness
reports; photographs of his family (wife, children and extended family
members); awards; certificates of achievement; and countless statements
of support from various character witnesses who Attorney Calcagni
interviewed on the Marine’s behalf. The Court accepted all defense
exhibits into evidence without incident.
Next, Attorney Calcagni called two witnesses to the stand: the
Marine’s spouse and the Marine himself. The spouse, a former Marine,
talked about how she met the Marine while assigned to the same duty
station. She detailed about what a great Marine, husband and father he
is to both her two young boys from a former marriage, his young daughter
from a former marriage, and their infant son. She talked of her
husband’s compassion, attentiveness, concern and care as a parent and
husband. She also discussed how he is the family’s sole source of
financial support and how he began two civilian businesses in
anticipation of a medical separation, but that one had fallen into
bankruptcy. Lastly, the spouse told the judge that if her husband was
sentenced to confinement, she feared she would be unable to support the
children on her own, as she is unemployed. In closing, she asked the
military judge to have lenience on the accused.
The Marine then testified in the form of an unsworn statement, which
he provided in question-answer format led by Attorney Calcagni. The
Marine detailed his family, such as his wife and four children (two
stepsons; one biological daughter; and one biological son); parents,
including a father who suffers from various health conditions; and two
foster brothers, one of whom has a life threatening health condition.
In terms of his immediate family, he talked about his life and
experiences raising four children and relationship with his wife. He
also talked of the joy of being present for the birth and initial
moments of his newborn son, who also is grappling with some medical
issues. The Marine then detailed his history in the
USMC,
such as attending basic training and then immediately deploying for two
weeks after arriving to his first duty station, which prevented him
from being home for his first child’s (daughter) birth. He also
discussed how he missed the first year and a half of her life when his
deployment was involuntarily extended. The Marine went on to discuss
his duty assignment history and diagnoses and treatment of disqualifying
medical conditions, for which he received an approved medical
separation, severance pay and disability benefits, which he would
already have received but for the pending court-martial. As for his
civilian businesses, he oriented the court as to each business’s type,
dates, and current status. He also discussed his misconduct and
motivation for committing it: to aid and assist his unit and command,
not to benefit himself in any way. He apologized to all parties
involved in his court-martial process. In closing, he relayed to the
Court the negative impact he believed his federal conviction would have
on his life and how confinement would impact his family. When the
Marine concluded his testimony, the defense rested.
Absent any rebuttal from the government, the parties proceeded with
sentencing arguments. The government asked for confinement of two
months, a Bad Conduct Discharge and forfeiture of pay and allowances for
some months. In support of this request, the government prosecutor
emphasized that the accused Marine needed to be both punished and
rehabilitated for his actions. In reply, Attorney Calcagni claimed that
the government’s request was “heavy-handed” and that the accused
“should be judged not by his mistakes, but by his overall achievements
and contributions in life.” He emphasized how nearly two years had
passed since the admitted misconduct and that during this time period,
the accused had received accolades and awards from his unit, good
fitness reports from his chain of command, and recognition for his
involvement in volunteer work within the community. Attorney Calcagni
also emphasized that the accused’s misconduct was influenced by poor
leadership, lack of supervision and an absence of accountability, all
promulgated by a Commander whose hands were “also soiled” for the
falsified
DRMO documentation. Attorney
Calcagni relayed to the military that his client had fully accepted
responsibility for his actions, initially with
NCIS and later before the Court, and but for this limited integrity violation, he had an unblemished record of serving the
USMC Honorably
for years. Given these collective factors, he asked the Court “to
afford the Marine a second chance, to allow him to get back on his feet,
to dust himself off, and to move out in the positive direction he had
been traveling since this incident occurred.” In closing, Attorney
Calcagni asked the Court to impose a written reprimand as the only form
of punishment.
After nearly two hours of deliberations, the military judge
delivered the accused’s sentence. He imposed no confinement and no
punitive discharge. He did, however, impose a written reprimand, as
Attorney Calcagni suggested, along with 30 days of hard labor, and a
reduction in rank to Lance Corporal, a term, which according to the
pretrial agreement Attorney Calcagni negotiated for this client with the
government, will be disapproved.
In conclusion, the Marine received
the reprimand as the sole form of punishment in this case and was
subsequently
discharged from the USMC Honorably with his previously awarded medical separation.
Semper Fidelis to this fine Marine.
----------------------------------------------------------------------------------------
The Law Office of John L. Calcagni, III offers clients representation in the areas of Criminal Defense, Military Defense, Federal Criminal Defense, OUI Defense in MA , Assault and Battery and all criminal matters.
As a Criminal and Military Defense Attorney and former prosecutor with the US Army JAG Corps, John Calcagni, is admitted to practice in the United States Court of Appeals for the Armed Forces and the U.S. Army Court of Criminal Appeals, as well as the state and federal courts in Rhode Island, New York, Connecticut, Florida and the Commonwealth of Massachusetts.
Please call (401) 351-5100 to arrange for a free consultation about your case or visit our website at
www,CalcagniLaw.com
If you cannot make it to one of our offices, we will to come to your home or detention center.
