Former MG Grazioplene

Recently, the Secretary of the Army reduced Major General Grazioplene's retired grade to second lieutenant--a significant "pay" cut. The action was based on the substantiated allegations that he sexually abused his daughter over a significant period going back to when he was a first lieutenant. He retired in 2015. (Whether that grade reduction can be challenged at the Court of Federal Claims is not my question.)

2 LT Grazioplene can still face court-martial--can he not?

Charges for rape were preferred against Grazioplene in 2017, and in November he was arraigned on his then alleged sexual misconduct; offenses committed while he was on active duty and at three different duty stations. (He was not placed in pretrial confinement and he was not recalled to active duty.)
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Military prosecutors alleged in the August hearing that Grazioplene assaulted the girl at or near each of his duty stations from 1983 to 1989, which included Fort Leavenworth, Kansas; Bindlach and Amberg, Germany; Woodbridge, Virginia; and Fort Bragg, North Carolina.

​But the alleged victim also cited alleged abuse that occurred at other locations, including while Grazioplene taught at West Point and in a location in New York state. Some of her testimony referenced abuse that predated the time frame listed in the charge sheet.

Grazioplene was arraigned in November 2017. Then came United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). As a result of CAAF's decision, the military judge dismissed the charges against Grazioplene.​ That was not the end of Grazioplene's legal difficulty. 
​Thank you Army Times.

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[Grazioplene] was arrested Dec. 7 and indicted by a Virginia grand jury on three counts of rape and three counts of incest allegedly involving his daughter between Aug. 1, 1987, and May 31, 1988, according to the Dec. 3 indictment documents.
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Ah, Virginia had(s) no statute of limitations for rape, but it is limited in its jurisdiction to crimes committed within the Commonwealth. That is not to say that Virginia's version (Rule 413) of Mil. R. Evid. 414 wouldn't allow the other acts to be appropriately considered.

​Thank  you Patch, a place to get interesting local news tidbits.

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Like courts-martial, the trial did not go smoothly in terms of timeliness. Does this sound familiar?

The trial of retired Army Maj. Gen. James Grazioplene on rape and incest charges has been postponed for the second time this year.

Grazioplene had already been given a postponement of his original April 29 trial date to Sept. 3, but Judge Carroll Weimer Jr. granted . . . the latest continuance at a July 10 hearing to give them more time to locate key witnesses, according to the Defendant's Notice and Motion to Continue.

​The Army has appointed an officer to "make available witnesses to be interviewed by the defense team." However, several of the Army witnesses were unavailable for reasons such as changes of duty station or deployment-related absences, according to the notice.

​"These Army witnesses will provide testimony that is clearly and unambiguously exculpatory ... and there can be no due process without their appearances," the defense document states.

This too may seem familiar--Grazioplene negotiated a plea deal.

Retired Army Maj. Gen. James Grazioplene, who faced charges of allegedly raping his daughter in the 1980s, pleaded guilty to a lesser charge today in Prince William County Circuit Court in exchange for a 20-year suspended prison sentence.

​Grazioplene, who has been incarcerated for 18 months, will serve no additional jail time as part of the plea agreement that includes supervised probation, according to documents published by the court.
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And along came United States v. Briggs which we know holds that CAAF was wrong in Mangahas. This is why I ask, Grazioplene can still face court-martial can't he?

• There is no double jeopardy issue--is there? Sure, he was arraigned, but  . . . Check out MAJ Daniel J. Everett, Double, Double Toil and Trouble: An Invitation for Regaining Double Jeopardy Symmetry in Courts-Martial. THE ARMY LAWYER, April 2011.
• The Commonwealth of Virginia is a separate sovereign. Despite the arguments either way, we have Gamble v. United States.
• Assume that the Secretary of the Army wants to moot potential legal issues that could cause litigation and delays and decides that once is enough on the Commonwealth of Virginia allegations, then,
  • There is no statute of limitations for some, perhaps all, of the other alleged offenses.
  • And, unlike the Commonwealth of Virginia, a court-martial has jurisdiction over Grazioplene and all of his alleged offenses wherever committed. He is a regular component retiree. President Lincoln signed a Act in 1861 subjecting certain officers not on active duty to court-martial, Congress has enlarged regular component retiree jurisdiction in Article 2, UCMJ; and the Supremes has yet to say that regular component retirees are not subject to court-martial.

There you have it, how's that for stirring the pot; an interesting brew.

Cheers, Phil Cave

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