Trial by Court-Martial Results

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.
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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.

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