Bradley Manning Could Draw a Maximum Term of 136 Years

Bradley Manning will face years of monotony in a military prison, without access to the internet or the outside world, when he learns of his sentencing in the upcoming days.

A military judge last week found Manning, the former low-level intelligence analyst, guilty of 19 criminal charges, including espionage and theft, for giving about 700,000 classified diplomatic cables and war logs to the anti-secrecy WikiLeaks website in 2010 while he was serving in Iraq.

The U.S. Army Private First Class was acquitted at his two-month-long court-martial on the most serious charge of aiding the enemy, sparing him a life sentence without parole. But his convictions could draw a maximum term of 136 years.

To read more about the life that Bradley Manning may face in a military prison, click on the following link:

http://www.businessinsider.com/bradley-manning-faces-a-tough-life-in-prison-2013-8
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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 in Rhode Island, Connecticut, New York and 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.

Did Bradley Manning Commit Treason?

A Yale law professor and Bloomberg columnist analyzes the debate over the use of the word “treason” and its role in the Bradley Manning trial. Last week, a military judge rejected treason charges against the Army Private First Class who provided tens of thousands of secret documents to WikiLeaks.

At his court martial, Manning was convicted of espionage and several lesser offenses and will likely spend the rest of his life in prison. However, he was acquitted on the charge of “aiding the enemy,” which is the Uniform Code of Military Justice’s functional equivalent of treason.

To read more about the Manning trial and the debate over the charges of treason, click on the following link:

http://www.bloomberg.com/news/2013-08-02/bradley-manning-s-crime-is-smaller-than-treason.html
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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.
 
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.

Prosecutors Asking for Reinstatement of Charges Against War Crimes Suspect

Military prosecutors are asking the military’s highest court to reinstate the overturned conviction of a Marine who played a role in committing one of the worst war crimes to surface from the Iraq war, which involved the kidnapping and murder of an Iraqi civilian.

Last month, military judges supported Sergeant Lawrence Hutchins III’s claims that his rights were violated when he was held in solitary confinement without access to a lawyer for seven days during his 2006 interrogation in Iraq. In a motion filed last week, military prosecutors state that the Marine waived his right to counsel at the time and willfully told his side of the story without being coerced, and the prosecutors subsequently ask the court to reconsider its ruling.

The Marines’ defense lawyer has filed an opposition to the government’s motion, asking the court to summarily dismiss it and to immediately order the military to release his client.

To read more about this remarkable military court case, please click on the following link:

http://abcnews.go.com/US/wireStory/govt-asks-court-reinstate-marines-conviction-19621406 – .UeGbQaUx9SU

If you need criminal defense in civilian or military court, call the Law Offices of John L. Calcagni, III, at 401-531-5100 for a free consultation to learn about your options.

A former prosecutor with the U.S. Army JAG Corps and a Special Assistant U.S. Attorney, John Calcagni is experienced in the prosecution and defense of all types of criminal cases and provides defense for those accused of federal and or crimes.

As a Military Defense Attorney, 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, Massachusetts, New York, Connecticut and Florida.

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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.

Military Criminal Defense Attorney Board of Inquiry Testimonial

If you are a United States service-member in need of assistance with a civilian or a military criminal matter, contact Criminal Defense Attorney John L. Calcagni now at (401) 351-5100 for a free consultation or more information. Remember to subscribe to my blog for updates on military and criminal law matters.

"Dear Attorney Calcagni,

It is with the utmost gratitude that I write to you today.  I have no doubt in my mind that you were the key to winning my recent Officer Board of Inquiry hearing. 

I first want to thank you for getting my life back.  I say this because the U.S. Army is my life.  I have expended all my energies for the Army during my 27 years of service.  It has been paramount to me to serve my country.  You have allowed me to continue that service. 

I have been living with a black mark in my career for 6 years.  At first, I hired an attorney to clear my name and reputation.  He failed miserably in this endeavor.  I then spent the next 6 years waiting for the notice of separation or elimination that I knew by Army Regulation was forthcoming.  It remained a terrible burden on my family and I. 

When the notice of elimination finally arrived from U.S. Army Human Resources Command, I was deployed to Afghanistan.  The sudden and unsettling news that my military career could be over just a few years before my active duty retirement eligibility made me feel as if the world was ending.  I am so lucky that a good friend and fellow Army Officer recommended me to you.  

From the moment we first spoke, I knew that you were an extraordinarily competent, professional and compassionate attorney.  You were as passionate about your profession as I was about mine.  I saw that you fought for your clients and were dedicated to winning.  This gave me hope of winning when my potential future in the military seemed very bleak. 

Throughout the 9 months that we worked on my case, you always found time to talk to me.  You even waited for my call late at night and into the early morning hour so that we could talk by phone when I was in Afghanistan.  Your dedication to my case was astounding. 

When it came to my Board of Inquiry or separation or elimination hearing, you performed flawlessly.  I have witnessed many court and other adversarial proceedings and never in my 47 years have I ever seen a more skilled orator such as you. 

I completely left the decisions of my defense in your capable hands and you never disappointed.  From the paperwork that your office and its professional staff produced on my behalf, to your conduct in the hearing, overall, your representation of me can only be described as perfect. 

You are honest, sincere and extremely talented.  It is because of your hard and dedicated work that I was retained by a Board of Officers for further active duty military service in the U.S. Army.  I thank you again for my life back!  - MAJ L"

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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 , and Assault and Battery matters. John L. Calcagni, III is licensed to practice in state and federal courts in the States of Rhode Island, Connecticut, New York, Florida, and the Commonwealth of Massachusetts.

Please call (401) 351-5100 to arrange for a free consultation about your case. If you cannot make it to one of our offices, we will to come to your home or detention center.

Military Justice System and Civilian Victims

If you are a United States service-member in need of assistance with a civilian or a military criminal matter, contact Criminal Defense Attorney John L. Calcagni now at (401) 351-5100 for a free consultation or more information. Remember to subscribe to my blog for updates on military and criminal law matters.

Afghan massacre case tests military justice system on troops accused of killing civilians

JOINT BASE LEWIS-McCHORD, Wash. — The U.S. military has been criticized for its spotty record on convicting troops of killing civilians, but a hearing against Army Staff Sgt. Robert Bales involving a massacre in Afghanistan has shown that it isn’t like most cases.

Government prosecutors have built a strong eyewitness case against the veteran soldier, with troops recounting how they saw Bales return to the base covered in blood. And in unusual testimony in a military court, Afghan civilians questioned via a video link described the horror of seeing 16 people killed, mostly children, in their villages.

Law experts say the case could test whether the military, aided by technology, is able to embark on a new era of accountability.

Bales faces 16 counts of premeditated murder and six counts of attempted murder. The preliminary hearing, which began Nov. 5 and is scheduled to end with closing arguments Tuesday, will determine whether he faces a court-martial. He could face the death penalty if convicted.

Read the full article HERE

Former Army Medic “Pleads Guilty in Militia Case”

If you have been accused of a Military Crime, you need a Defense Attorney with experience handling Military Crimes, Courts Martial Defense, and Administrative Board Hearings. Contact Military Defense Attorney John L. Calcagni at (401) 351-5100 for a consultation now.

Former soldier pleads guilty in militia case

By Russ Bynum - The Associated Press
HINESVILLE, Ga. — A former Army medic pleaded guilty Monday to charges that he burned bloody clothes, spent shotgun shells and a cellphone to try to help fellow soldiers cover up a double killing that prosecutors say was linked to a militia group plotting terrorist attacks while operating inside the military at Fort Stewart in southeast Georgia.

Former Pfc. Christopher Jenderseck of Fargo, N.D., told a Liberty County Superior Court judge that he built the backyard bonfire used to dispose of the items last December. He said none of his fellow soldiers told him that he was destroying evidence to cover up a killing, though he figured it out as the fire burned. Still, Jenderseck admitted, he did nothing to stop them.

Read more HERE

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.

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.

ROTC (Reserve Officer Training Corps) Disenrollment

 

Entering into any branch of the United States military is a long-term career choice for many people due to the wide variety of career fields to explore. This means that in some cases, the United States government will provide scholarships via the Reserve Officer Training Corps (ROTC) for those entering into officer ranks. One aspect of ROTC enrollment that many prospective officers are not aware of are the many consequences for failure.

Active-Duty members of the armed forces enrolled in ROTC may face "disenrollment" for poor academic performance, misconduct, and any other honor code violations. The most common violation is academic failure which may result in the student owing the cost of the education in full. While each branch of military handles the process its own way, they all require an investigation into the failure or misconduct and allow the cadet to challenge his or her disenrollment through restricted hearing procedures.

If you or someone you know needs help with a military criminal matter, contact Military Defense Attorney John L. Calcagni at (401) 351-5100 now for a free consultation and more information.

Article 15 (Non-judicial Punishment)

The term "Article 15" refers to a military mandate known as a "non-judicial Punishment." Article 15 allows a commanding officer to punish an active-duty military member for a minor offense. The process is similar to a court-martial, however it is used as an alternative for offenses considered to be mild misconduct issues, rather than the more serious crimes that typically command the court martial process.

What to expect when issued an Article 15

Being subject to an Article 15 is not unlike a typical civilian arrest in some ways. Once a commander issues you an Article 15 he or she will formally notify you that you are being given one, and will provide you with the details of your misconduct. You will be presented with any evidence against you, followed by a notification of your rights under the UCMJ. Should you refuse the Article 15, you will be issued a court martial and given the opportunity to present your side of the story along with any evidence or witness testimony in your favor. (Refusing an Article 15 is not the same as pleading not-guilty.)

Factors to consider

In some cases, an accused member of the armed forces may be able to present clear undisputable evidence that they are not guilty of an offense; in which case a court-martial may not pose a great deal of risk while simultaneously dismissing all allegations. If the evidence presented is insufficient to prove innocence however, an individual may face much more severe penalties when found guilty.

In accepting an Article 15 you are agreeing to let your commander decide whether or not you are guilty and what (if any) punishment you should receive. Pleading not guilty will not result in a court-martial, but will instead open the opportunity to present your case to the commander. Accepting an Article 15 means that the consequences of the charge are much less serious than those of a court-martial.

If you are facing an Article 15

If you are facing an article 15 from your commander, understand that you have choices. The outcome of an Article 15 will be on your military record permanently regardless of whether you accept or choose a court-martial. An experienced Military criminal defense attorney can help you consider your options and assist you in making the best decision. If you are currently facing an Article 15 contact RI Criminal Defense Attorney John L. Calcagni at (401) 351-5100 for more information.

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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 , and Assault and Battery matters. John L. Calcagni, III is licensed to practice in state and federal courts in the States of Rhode Island, Connecticut, New York, Florida, and the Commonwealth of Massachusetts.

Please call (401) 351-5100 to arrange for a free consultation about your case. If you cannot make it to one of our offices, we will to come to your home or detention center.

ABCMR (Army Board for Correction of Military Records)

 

As a member of any of the United States military branches, your military record has a powerful influence on the rest of your life should you choose to become a civilian once again. In most situations, previously active-duty military personnel are honorably discharged without incident, however there are times in which mistakes are made either by the individual, or the branch of service for which he or she serves. When this occurs, the end result is a mark on your military record that may or may not hinder other areas of your life, depending on the seriousness of the infraction.

Your military record

Your military record is essentially the same as your civilian record. It is a series of documented events that reflect your character and used to determine whether or not you are a suitable candidate for a myriad of different positions, especially in regard to employment. Mistakes on your military record can be made relatively easily, sometimes due to simple errors, and occasionally as the result of a wrongful conviction after a Court Martial. It is possible that you were accused and convicted of a crime you did not commit and may have something on your record that should not be there. The end result is simply a mark against you, which will undoubtedly challenge your ability to demonstrate your qualifications based on your military history.

Addressing the ABCMR

The main function of the ABCMR is to conduct a review of your military record and make any necessary changes based on whether or not you successfully demonstrate legitimate reasons for doing so. Any changes that the ABCMR make to your military record are strictly at the discretion of the board's members, which is why it is in your best interest to hire a professional. Petitioning the ABCMR is both; a commitment, and a very challenging process that can only be done within three years of the date in which the error was made.

Need Help?

Having a professional attorney guide you through this process will greatly increase your chances of success. If you need help petitioning the BCMR and wish to correct your military record, contact Military Criminal Defense Lawyer John L. Calcagni at (401) 351-5100 now for a free consultation or more information.

U.S. Soldier and Parent Testimonial

A recent military criminal defense case prompted both client and a family member to write about their experience and how pleased they were with the outcome. If you are involved in a military criminal situation contact Criminal Defense Attorney John L. Calcagni now at (401) 351-5100 for a free consultation or more information.

 

From a U.S. Soldier
"John Calcagni’s professionalism, legal skills and ability to maneuver effectively throughout the U.S. Army’s legal and beaurocratic systems is a unique combination of talents that is not easily found among attorneys. I have and will continue to recommend Attorney Calcagni’s services to my fellow Rangers, Soldiers and Friends! From the bottom of a Soldier’s heart, thank you John."  – SPC K

From the U.S. Soldier's Parent
"Dear Attorney Calcagni:

I cannot thank you enough for your dedicated professionalism and immediate response to help my son who is a Specialist on active duty in the United States Army.

I was desperate to find a trusted attorney who I could retain on behalf of my son.  He had recently experienced a series of catastrophic, live altering events resulting from deployment-related mental health issues.  The most serious event was an emotional breakdown rendering him unable to continue on with military service after 5 years of continuous deployments as a U.S. Army Ranger in Special Operations.  He desperately needed to leave military service yet there was no one to turn to.  He did not have the support of his Command, leadership or even military healthcare providers in this regard.  You navigated this web of military apathy and bureaucracy to seek my son’s discharge.  Your insightful and calm actions brought results within a matter of weeks.  I truly believe it is due to your depth of experience in dealing with the highest levels of the military officials, including members of the Judge Advocate General’s Corps that brought this matter to a hasty and favorable conclusion for my son.

My son understood from his very first phone call with you that he could trust you, which brought him a tremendous measure of relief.  We had experienced a number of false starts and “gotcha moments” from the military that were debilitating to both my son and I.  You restored our hope and confidence in the system, and thereafter obtained exceptional results on our behalf, which exceeded all expectations.

Despite your heavy trial schedule - at that time - you remained diligent, in touch with my son, calming and guiding him through the process to reach the right resolution.  Your unique ability to make contacts at the highest levels of the military was invaluable.  You immediately brought about a “cease and desist” of the taunting and humiliating “meetings” and threats my Son was receiving from members of his chain of command.  With you in his corner, he felt protected and on his way to obtaining justice from the military in the form of an honorable discharge on account of his mental health issues.

Military law is a completely different world than what I have ever experienced during my thirty (30) years as a civilian lawyer.  I sensed from our first phone call that you are highly skilled in military law and advocacy and as adept in negotiation skills as any highly paid private mediator I have hired while serving as General Counsel for various large corporations throughout my career.

My son and knew when we spoke with you that you could resolve his issue, avoid him being discharged from the military in an unfavorable matter, and help to place him on the road to receiving an Honorable Discharge with resulting benefits, as he and all of our Soldiers who similarly sacrificed for our freedoms, well deserve.  Thank you for restoring hope to my family and protecting the future of my son." – Mother of SPC K

Military Criminal Defense Lawyer Helps U.S. Soldier

If you are a United States service-member in need of assistance with a civilian or a military criminal matter, contact Criminal Defense Attorney John L. Calcagni now at (401) 351-5100

“I am a U.S. Soldier who was recently charged with a civilian criminal offense. I first met Attorney Calcagni at my arraignment at the courthouse. He informed me of his military background and extensive experience defending service members. As a result, I accepted his business card and agreed to contact him for an initial client consultation. When I first walked into Attorney Calcagni's office, I was a bit nervous. I had never been charged with a crime or consulted with an attorney before. I also knew that as a service member, if I was convicted of a crime of any type, my military career would be over. After talking with Attorney Calcagni, he was able to make a tough and stressful time for me seem much easier. He was eager to hear about my case and determined to defend against my charge in order to preserve my military career. After appearing in Court together on a couple of occasions, he was able to convince the District Attorney to dismiss the case against me. John Calcagni was very professional and a true pleasure to work with. I highly recommend him to defend anyone’s case. He is an awesome lawyer and a fellow Soldier. I will never forget how he helped to both win my case and save my career.” – SSG L

U.S. Army Recruiter Retained Following Administrative Separation Board

U.S. Army Sergeant First Class Recruiter, with 17 years of service, was referred for administrative separation from military service.  The Recruiter was alleged to have engaged in an inappropriate and unlawful relationship with a female recruit.  The Recruiter's Commander initiated an investigation into specific allegations the Recruiter unlawfully took the female recruit to parties; invited her to his home; spent time working out with her at a local civilian gym; and engaged in romantic relations together.  Once the recruit shipped off to basic training, the Recruiter allegedly maintained contact with her; assisted her with going AWOL; and stating lies and falsified documents to conceal the alleged misconduct.

The Commander's investigation yielded sufficient evidence, in the investigator's opinion, to substantive charges against the Recruiter for fraternizing with the recruit, making false official statements, and falsifying a leave/pass form.  The Recruiter was referred for Non-Judicial Punishment pursuant to Article 15, Uniform Code of Military Justice (UCMJ).  The Recruiter's Brigade Commander served as the Article 15 Hearing Officer.  After reviewing evidence presented by the government related to the charges, and "allegedly" reviewing exculpatory evidence submitted by the Recruiter in his behalf, the Article 15 Officer found the Recruiter guilty of all charges and specifications.  Thereafter, the Commander relieved the Recruiter from his recruiting position and referred him for administrative separation from the U.S. Army with a recommendation that his military service be characterized as Other Than Honorable (OTH).  The Recruiter demanded his right to an administrative separation board and hired Attorney John L. Calcagni III to represent him at this proceeding.

At the hearing, the government relied upon both the recruiter's Article 15 convictions and related evidence to support the government’s request that the Recruiter be discharged from military service with an OTH.  Attorney Calcagni delicately cross-examined each of three government witnesses, all whom testified that the Recruiter had committed inexcusable misconduct and therefore, should be separated from future military service.  However, each witness conceded on cross-examination that their opinions and recommendations were based in whole on the Recruiter’s Article 15 convictions.

In the Recruiter's defense, Attorney Calcagni and his military defense counsel counterpart, Captain Jason S. Ballard – with whom Calcagni has a longstanding working relationship and proven track record – called two character witnesses.  Both witnesses, former members of the Recruiter's chain of command, testified that the Recruiter was a flawless Non-Commissioned Officer, exceptional asset to the U.S. Army and recruiting community, and should be retained without question for future military service.  One character witness further testified that decisions to refer the Recruiter for both an Article 15 and administrative separation may have been product of a biased command climate.

Attorney Calcagni presented further evidence that challenged the integrity of the Recruiter's Article 15 hearing, as well as the reliability of government’s evidence relied upon by the Article 15 officer, especially when compared to overwhelming evidence that exculpated the Recruiter from any wrongdoing.  Attorney Calcagni – in a bold and brave manner – also challenged the credibility and veracity of the Recruiter’s chain of command, many of whom had made prejudicial remarks to recruiter before and during the Article 15 hearing; testified inconsistently with the evidence presented; and apparently engaged in coercion or other inappropriate actions during the course of investigation leading up to and following the Article 15 hearing.

After sworn testimony from the Recruiter himself, and a passionate and compelling closing argument by Attorney Calcagni claiming that "perception is not realty," "members in uniform are not impervious to human weaknesses of misrepresentation, bias, prejudice and self-interest,” and that the Recruiter was “entitled to a fair shake” both at the Article 15 hearing and at his separation hearing, the separation board members voted that the Recruiter did not engage in the thrust of the charged misconduct and should be retained for further military service  in his recruiting capacity.  Congratulations to this Soldier!

Cocaine Use: Finding of No Misonduct and Retained for Future Military Service

If you need a Military Criminal Defense Attorney, contact John L. Calcagni, III now at (401) 351-5100 for a free consultation.

A U.S. Army National Guard Non-Commissioned Officer (NCO) tested positive for cocaine use during a unit-wide urinalysis for unlawful drug use.

The NCO, a female of Latin-American decent, consumed a Latin herbal tea made partially with coca leaves, a major component to cocaine, several hours before the urinalysis. The NCO’s family member offered her the tea as a home remedy for an upset stomach. The NCO consumed the tea without realizing it was of the type made with cocoa leaves and thereafter attended her scheduled monthly battle drill.

While there, she participated in a urinalysis that detected the cocaine metabolite in her system. In accordance with army regulations, the NCO was both flagged from favorable personnel actions and processed for administrative separation from military service. The NCO was in the zone at the time for re-enlistment and promotion with plans to attend both Air Assault and Officer Candidate School.

She was also a leading candidate for a full-time AGR position with the National Guard. Because of the positive urinalysis and resulting flagging action, all of these plans were placed on hold. Needless to day, the NCO had a lot on the line and much to lose with the pending separation action, to include her military career.

The NCO was represented by Attorney John L. Calcagni III for purposes of her separation hearing board. Attorney Calcagni worked hand-in-hand with his client to prepare an ironclad defense at the hearing. Attorney Calcagni’s defense employed a two-part strategy. First, Attorney Calcagni sought to highlight for the board members the NCO’s impeccable service record.

This female had nearly ten (10) years of military service at the time. She had previously deployed to Iraq. She was also highly regarded among her peers and by her chain of command, to include both her Battalion Commander and Battalion Sergeant Major. Similarly, her Company Commander and First Sergeant gave her stellar reviews.

She also had countless certificates, achievements and awards in her service record. Attorney Calcagni marshaled this information before the board members in the form of both live and recorded witness testimony as well as documents from the NCO’s personnel files.

The second prong of Attorney Calcagni’s defense was to demonstrate that the NCO innocently ingested the cocoa tea without knowing of its chemical make-up. Part of this defense prong was to establish the small amount of cocaine base in each tea bag, and how that small amount ingested close in time to a urinalysis could yield results equal or similar to that of the NCO.

Lastly, Attorney Calcagni sought to show that this small amount of cocaine base, if ingested into the body, would not produce any psychological or physiological effects that would give notice to an ingested illicit substance. To obtain and present this evidence, Attorney Calcagni underwent a nationwide search for toxicologists with Department of Defense (DOD) and/or military backgrounds. He located such an expert with extensive experience performing urinalysis testing for the U.S. Army.

Attorney Calcagni then employed an investigator to go into the local community to purchase the cocoa tea in question, which is available for sale in inner city Hispanic markets. The investigator acquired the type and brand tea consumed by the NCO. He also acquired more potent samples from the local market place.

A sample of the type and brand of tea consumed by the NCO was then shipped to a laboratory, at the toxicologist’s instruction, for chemical testing. This testing confirmed Attorney Calcagni’s theory – that someone of the NCO’s height and weight, who consumed one standard cup of the brewed cocoa tea within hours of a urinalysis, would test positive for the presence of cocaine as did this unlucky Soldier.

The toxicologist completed a report of the laboratory’s findings and set forth his opinion, which was that one bag of the tea contained enough cocaine base such that if consumed within hours of the urinalysis, would yield test results for the presence of cocaine in a similar quantity as the NCO. He further opined that the NCO would not have experienced any effects from the substance and therefore, could have innocently ingested it. The report was presented for the board members’ consideration.

In closing argument, Attorney Calcagni argued that the NCO was the epitome of an American Soldier who lived and breathed the Army values. He also argued that she was the antithesis of a drug user. Because of her ethnic background, her family member provided her a substance that though comprised partially of the cocoa leaf, is apparently lawful in the United States given its availability for purchase in the local community.

Lastly, he argued that her character and reputation in the National Guard buttressed and supported her innocent ingestion, which was scientifically proven by the toxicologist’s report. As a result of these efforts, the board members voted unanimously that the NCO committed no misconduct. The members further voted for the NCO to be retained for future service, and be immediately reinstated to duty and for all other service-related benefits.

Congratulations to this NCO, who has since become a Commissioned Officer, for this outstanding result.
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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 , and Assault and Battery matters. John L. Calcagni, III is licensed to practice in state and federal courts in the States of Rhode Island, Connecticut, New York, Florida, and the Commonwealth of Massachusetts.

Please call (401) 351-5100 to arrange for a free consultation about your case. If you cannot make it to one of our offices, we will to come to your home or detention center.

U.S. Army Recruiter Retained Following Administrative Separation Board

If you need a Military Defense Attorney or Criminal Defense Lawyer contact John L. Calcagni, III now at (401) 351-5100.

U.S. Army Sergeant First Class Recruiter, with 17 years of service, was referred for administrative separation from military service. The Recruiter was alleged to have engaged in an inappropriate and unlawful relationship with a female recruit. The Recruiter's Commander initiated an investigation into specific allegations the Recruiter unlawfully took the female recruit to parties; invited her to his home; spent time working out with her at a local civilian gym; and engaged in romantic relations together. Once the recruit shipped off to basic training, the Recruiter allegedly maintained contact with her; assisted her with going AWOL; and stating lies and falsified documents to conceal the alleged misconduct.

The Commander's investigation yielded sufficient evidence, in the investigator's opinion, to substantive charges against the Recruiter for fraternizing with the recruit, making false official statements, and falsifying a leave/pass form. The Recruiter was referred for Non-Judicial Punishment pursuant to Article 15, Uniform Code of Military Justice (UCMJ). The Recruiter's Brigade Commander served as the Article 15 Hearing Officer. After reviewing evidence presented by the government related to the charges, and "allegedly" reviewing exculpatory evidence submitted by the Recruiter in his behalf, the Article 15 Officer found the Recruiter guilty of all charges and specifications. Thereafter, the Commander relieved the Recruiter from his recruiting position and referred him for administrative separation from the U.S. Army with a recommendation that his military service be characterized as Other Than Honorable (OTH). The Recruiter demanded his right to an administrative separation board and hired Attorney John L. Calcagni III to represent him at this proceeding.

At the hearing, the government relied upon both the recruiter's Article 15 convictions and related evidence to support the government’s request that the Recruiter be discharged from military service with an OTH. Attorney Calcagni delicately cross-examined each of three government witnesses, all whom testified that the Recruiter had committed inexcusable misconduct and therefore, should be separated from future military service. However, each witness conceded on cross-examination that their opinions and recommendations were based in whole on the Recruiter’s Article 15 convictions.

In the Recruiter's defense, Attorney Calcagni and his military defense counsel counterpart, Captain Jason S. Ballard – with whom Calcagni has a longstanding working relationship and proven track record – called two character witnesses. Both witnesses, former members of the Recruiter's chain of command, testified that the Recruiter was a flawless Non-Commissioned Officer, exceptional asset to the U.S. Army and recruiting community, and should be retained without question for future military service. One character witness further testified that decisions to refer the Recruiter for both an Article 15 and administrative separation may have been product of a biased command climate.

Attorney Calcagni presented further evidence that challenged the integrity of the Recruiter's Article 15 hearing, as well as the reliability of government’s evidence relied upon by the Article 15 officer, especially when compared to overwhelming evidence that exculpated the Recruiter from any wrongdoing. Attorney Calcagni – in a bold and brave manner – also challenged the credibility and veracity of the Recruiter’s chain of command, many of whom had made prejudicial remarks to recruiter before and during the Article 15 hearing; testified inconsistently with the evidence presented; and apparently engaged in coercion or other inappropriate actions during the course of investigation leading up to and following the Article 15 hearing.

After sworn testimony from the Recruiter himself, and a passionate and compelling closing argument by Attorney Calcagni claiming that "perception is not realty," "members in uniform are not impervious to human weaknesses of misrepresentation, bias, prejudice and self-interest,” and that the Recruiter was “entitled to a fair shake” both at the Article 15 hearing and at his separation hearing, the separation board members voted that the Recruiter did not engage in the thrust of the charged misconduct and should be retained for further military service in his recruiting capacity. Congratulations to this Soldier!

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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 , and Assault and Battery matters. John L. Calcagni, III is licensed to practice in state and federal courts in the States of Rhode Island, Connecticut, New York, Florida, and the Commonwealth of Massachusetts.

Please call (401) 351-5100 to arrange for a free consultation about your case. If you cannot make it to one of our offices, we will to come to your home or detention center.

Military Criminal Defense Lawyers Post Case Results

 

CHARGES: Larceny of Military Property; False Official Statement; Dereliction of Duty.

SENTENCE: Not Guilty After Trial

A U.S. Army Field Grade Officer received orders to PCS to a new duty station. Upon arrival, she was assigned and moved into government quarters. Notwithstanding this fact, she began receiving basic allowance for housing (BAH) at the approximate rate of $2500.00 per month. BAH is a financial benefit provided to military personnel to assist with the cost of living on the economy or in private, non-government quarters. The Officer continued to receive BAH for a period of 35 months – nearly three years. One day, while on duty, her supervisor approached her to inquire if she in fact was receiving BAH. The Officer replied “yes, but that it was subsequently taken out from her pay for housing.” The supervisor directed the Officer to contact the Defense Finance and Accounting Service (DFAS) to inquire into whether she was in fact receiving BAH, whether or not she was authorized to receive it, and if not, how much unauthorized funds she had received. The Officer complied with all of her supervisor’s directives and learned from DFAS that she had received nearly $100,000.00 in unauthorized BAH.

The Officer was charged with three violations of the Uniform Code of Military Justice (UCMJ): Larceny of Military Property; Providing a False Official Statement to her supervisor; and Dereliction of Duty for failing to carefully monitor her monthly Leave and Earnings Statement (LES). These charges were referred for trial by General Court-Martial (GCM). The Officer was well represented at trial by the unstoppable defense “dream team” consisting of Attorney John L. Calcagni, a part-time U.S. Army Judge Advocate, and his colleague, Attorney Troy A. Smith, also an Army Judge Advocate. Attorneys Calcagni and Smith have a long history of trying cases against one another, as well as teaming up to defense Soldiers accused of crimes within the military. These attorneys make an unstoppable defense team and have a proven track record together of achieving success in the courtroom.

The Officer in this case elected her right to trial by a panel – the military equivalent of a civilian jury. The defense shaped the battlefield at trial with Attorney Calcagni’s heart-pounding and captivating opening statement. The defense characterized the governments view of the evidence as a “tale” and set the stage for its theory of innocence: the accused was unaware of the unauthorized BAH until it was brought to her attention by a supervisor; her reaction was characterized as “shocked, surprised, confused and YIKES;” she following all directives from her superiors, law enforcement personnel and DFAS regarding the BAH; had repaid most of the money by the time of trial; and had even assisted DFAS with re-calculating the outstanding debt to her own detriment on multiple occasions.

Once the actual trial got underway, government prosecutors presented several witnesses to establish that the Officer lived in government housing; was not entitled to BAH; and had received nearly $100,000.00 in unauthorized housing allowances over the course of 35 months. The defense team of Calcagni and Troy delivered devastating cross examinations to all government witnesses. In one instance, Attorney Calcagni turned one government witness – the Officer’s very own supervisor who brought her receipt of unauthorized BAH to light – into a defense character witness. Attorney Calcagni was able to have this witness testify unequivocally that the Officer was an outstanding military officer who was both law-abiding and truthfulness to the extent that she “doesn’t have a dishonest bone in her body.” In another instance, Attorney Smith virtually dismembered a law enforcement witness – a Criminal Investigation Division (CID) Agent – who obtained a sworn statement from the accused Officer.

Though the CID Agent characterized the Officer’s statement as a confession, Attorney Smith demonstrated clearly through his surgical cross-examination questions that the CID Agent lied under oath on multiple occasions and when questioning the Officer, was more concerned about characterizing her answers to accommodate his theory of her guilt rather than learning the truth of her innocence. Following these attorneys’ examinations and upon the close of the government’s case-in-chief, Attorney Calcagni successfully moved for dismissal of the Dereliction of Duty charge for lack of evidence.

The Defense put on a strong case at trial. Though the defense has no obligation to ever present a defense and it is the government’s burden to prove the accused’s guilty beyond a reasonable doubt, both Attorneys Calcagni and Smith are large proponents of presenting affirmative defense evidence at trial. Their shared philosophy paid dividends for the Officer charges in this case. The defense presented evidence that the Officer never checked or scrutinized her LES for receipt of BAH. They further proved, through the testimony of the accused, her husband and voluminous bank records, that the Officer did not carefully check or scrutinize her bank records or statements either. During the 35 months that she received the unauthorized BAH, she and her family had received nearly $100,000.00 in cash windfalls from unique tax credits and other forms of disposable income. The defense further presented character witnesses on the Officer’s behalf, which included a police officer, a retired Army Colonel who served with the accused Officer, a religious leader who was a U.S. Naval Academy graduate and retired Naval Commander, and a well-respected attorney and close friend of a U.S. Supreme Court Justice. These character witnesses all testified emphatically that the charges against the Officer were ludicrous and beyond her capability. They further highlighted her outstanding character for honesty and law-abidingness.

The defense closed its case with Attorney Smith’s precision-guided closing argument. This argument cast a dark cloud over the integrity of the investigation into the Officer’s receipt of unauthorized BAH. Attorney Smith quoted the Officer’s spouse that his client is considered “the Forrest Gump of the Army” for not more carefully analyzing her pay or bank records, but that she was mistaken about receiving the funds; she was distracted with other obligations in her life during the 35-month period that she received the BAH; had benefited from a number of significant financial benefits during this time period; and did “not have a dishonest bone in her body.”

The carefully constructed defense by Attorneys Calcagni and Smith sent the panel into deliberations with one mission – to acquit the Officer of the remaining charges of Larceny and Providing a False Official Statement. Several hours later, this mission was accomplished. The panel returned with a verdict consistent with the evidence presented at trial – not guilty on all counts. The charged officer was cleared of all wrongdoing and fully reinstated to her unit and position within the U.S. Army.

Ban on Gays in the Military Lifted by 9th Circuit

9th Circuit Bars Enforcement of ‘Don’t Ask, Don’t Tell’
Posted Jul 7, 2011 7:32 AM CDT
By Debra Cassens Weiss

A federal appeals panel has issued an order that bars the government from enforcing its "don’t ask, don’t tell" policy on gays in the military.

The San Francisco-based 9th U.S. Court of Appeals acted on Wednesday in a case involving a constitutional challenge to the policy, report the New York Times and the Recorder.

A federal judge had found the don’t ask, don’t tell policy unconstitutional in October and barred enforcement. A month later the 9th U.S. Circuit Court of Appeals stayed the judge’s injunction, allowing the government to continue enforcing its policy. Yesterday’s order lifts the stay.

The appellate panel noted two changed circumstances since it issued the stay last November, the stories say.

First, a repeal of the policy is already under way. Second, the Obama administration took the position in a different case on Friday that sexual orientation classifications should be subject to heightened scrutiny. The other case involves a 9th Circuit staff lawyer seeking health insurance coverage for her wife, the Recorder reports.

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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 , and Assault and Battery matters. John L. Calcagni, III is licensed to practice in state and federal courts in the States of Rhode Island, Connecticut, New York, Florida, and the Commonwealth of Massachusetts.

Please call (401) 351-5100 to arrange for a free consultation about your case. If you cannot make it to one of our offices, we will to come to your home or detention center.

Military Criminal Defense Attorney Calcagni assists Sergeant in Retaining Position after Article 15 and Separation Hearing

Military Criminal Defense Attorney Calcagni announces results in recent hearing representations of a U.S. Army Recruiter Sergeant in Retaining their Position after Article 15 and Separation Hearing. See the case details below. If you have questions on Military Criminal Defense please call (401) 351-5100 or visit www.CalcagniLaw.com to arrange for a free consultation about your case.


U.S. Army Recruiter Retained Following Administrative Separation Board.  

CASE DETAILS: U.S. Army Sergeant First Class Recruiter, with 17 years of service, was referred for administrative separation from military service.  The Recruiter was alleged to have engaged in an inappropriate and unlawful relationship with a female recruit.  The Recruiter's Commander initiated an investigation into specific allegations the Recruiter unlawfully took the female recruit to parties; invited her to his home; spent time working out with her at a local civilian gym; and engaged in romantic relations together.  Once the recruit shipped off to basic training, the Recruiter allegedly maintained contact with her; assisted her with going AWOL; and stating lies and falsified documents to conceal the alleged misconduct. 

The Commander's investigation yielded sufficient evidence, in the investigator's opinion, to substantive charges against the Recruiter for fraternizing with the recruit, making false official statements, and falsifying a leave/pass form.  The Recruiter was referred for Non-Judicial Punishment pursuant to Article 15, Uniform Code of Military Justice (UCMJ).  The Recruiter's Brigade Commander served as the Article 15 Hearing Officer.  After reviewing evidence presented by the government related to the charges, and "allegedly" reviewing exculpatory evidence submitted by the Recruiter in his behalf, the Article 15 Officer found the Recruiter guilty of all charges and specifications.  Thereafter, the Commander relieved the Recruiter from his recruiting position and referred him for administrative separation from the U.S. Army with a recommendation that his military service be characterized as Other Than Honorable (OTH).  The Recruiter demanded his right to an administrative separation board and hired Attorney John L. Calcagni III to represent him at this proceeding.

At the hearing, the government relied upon both the recruiter's Article 15 convictions and related evidence to support the government’s request that the Recruiter be discharged from military service with an OTH.  Attorney Calcagni delicately cross-examined each of three government witnesses, all whom testified that the Recruiter had committed inexcusable misconduct and therefore, should be separated from future military service.  However, each witness conceded on cross-examination that their opinions and recommendations were based in whole on the Recruiter’s Article 15 convictions.

In the Recruiter's defense, Attorney Calcagni and his military defense counsel counterpart, Captain Jason S. Ballard – with whom Calcagni has a longstanding working relationship and proven track record – called two character witnesses.  Both witnesses, former members of the Recruiter's chain of command, testified that the Recruiter was a flawless Non-Commissioned Officer, exceptional asset to the U.S. Army and recruiting community, and should be retained without question for future military service.  One character witness further testified that decisions to refer the Recruiter for both an Article 15 and administrative separation may have been product of a biased command climate.

Attorney Calcagni presented further evidence that challenged the integrity of the Recruiter's Article 15 hearing, as well as the reliability of government’s evidence relied upon by the Article 15 officer, especially when compared to overwhelming evidence that exculpated the Recruiter from any wrongdoing.  Attorney Calcagni – in a bold and brave manner – also challenged the credibility and veracity of the Recruiter’s chain of command, many of whom had made prejudicial remarks to recruiter before and during the Article 15 hearing; testified inconsistently with the evidence presented; and apparently engaged in coercion or other inappropriate actions during the course of investigation leading up to and following the Article 15 hearing. 

RESULT: After sworn testimony from the Recruiter himself, and a passionate and compelling closing argument by Attorney Calcagni claiming that "perception is not realty," "members in uniform are not impervious to human weaknesses of misrepresentation, bias, prejudice and self-interest,” and that the Recruiter was “entitled to a fair shake” both at the Article 15 hearing and at his separation hearing, the separation board members voted that the Recruiter did not engage in the thrust of the charged misconduct and should be retained for further military service  in his recruiting capacity.  Congratulations to this Soldier!

If you have questions on Military Criminal Defense please call (401) 351-5100 or visit www.CalcagniLaw.com to arrange for a free consultation about your case.



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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 , and Assault and Battery matters. John L. Calcagni, III is licensed to practice in state and federal courts in the States of Rhode Island, Connecticut, New York, Florida, and the Commonwealth of Massachusetts.

Please call (401) 351-5100 to arrange for a free consultation about your case. If you cannot make it to one of our offices, we will to come to your home or detention center.