Second OUI Case Results

Second Operating under the Influence of Alcohol (OUI); Driving While License Suspended for OUI; Negligent Operation of a Motor Vehicle; Marked Lanes Violation; and Possessing an Open Alcohol Container in a Vehicle: Continued Without a Finding. Police stopped a motorist who was observed drifting among and in between travel lanes at night on the freeway. The officer initiated a traffic stop of the motorist. As the vehicle pulled over, it struck the cement curbing. The officer then approached the vehicle and observed a female motorist. He also observed her eyes to be glossy and detected a strong odor of an alcoholic beverage emanating from inside the car. The officer retrieved the motorist’s license and learned that it was suspended for a recent OUI charge that was still pending in court.

The officer asked the woman to step from the vehicle to perform field sobriety tests (FST). As the woman exited the car, she fell back on her heels and used the vehicle to support her body weight. She participated in only one FST, which she failed. The officer continued to detect a strong odor of an alcoholic beverage emanating from the woman’s breath during their interactions. Despite these observations, the woman repeatedly professed that she “did not drink” and “does not ever drink.” The officer also observed a plastic cub inside the vehicle that contained a yellow fluid. The officer tested the fluid with his Portable Breath Test (PBT) machine and confirmed it was an alcoholic beverage. The officer then asked the female motorist to participate in a breath test with the PBT. She agreed to do so, but feigned her participation preventing the officer from obtaining an accurate reading of her blood-alcohol concentration (BAC). Based upon these facts, the officer placed the woman under arrest and transported her to the station for a chemical breath test, which she declined. The officer ultimately charged her with Operating under the Influence of Alcohol (OUI); Driving While License Suspended for OUI; Negligent Operation of a Motor Vehicle; Marked Lanes Violation; and Possessing an Open Alcohol Container in a Vehicle.

Attorney Calcagni was tasked with representing this motorist. He previously represented her on the first OUI charge that rendered her license suspended at the time of this arrest and successfully negotiated a pretrial resolution of that case that led to a dismissal. Initially, Attorney Calcagni could not negotiate a similar resolution of this case. As a result, the matter was set down for a jury trial. On the morning of trial, before a jury was impaneled, Attorney Calcagni presented the prosecutor with nearly one dozen pretrial motions that he intended to file. The motions sought to exclude evidence at trial such as the woman’s statements to police; her refusal to participate in the PBT and chemical breath test; her failing the FST; and the discovery of alcohol in her vehicle. If partially or wholly successful on these motions, Attorney Calcagni would have defeated the State’s case against the woman before a trial even started. Because of this fact, Attorney Calcagni was able to successfully persuade the prosecutor to make a pretrial offer to resolve this case. The offer provided that if the woman accepted responsibility to the OUI charge, the remaining charges would be dismissed. The offer further provided that despite having a prior OUI on her record, the woman would still receive first offender sanctions for this OUI and a Continuation Without a Finding (CWOF). Providing the woman successfully complies with all terms of her CWOF period, this OUI charge will be dismissed and she will not incur a criminal conviction from this incident.

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.