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.