Recent NMCCA Opinion: Allen

In July 2018, Deshaun Allen (“Appellant”) was convicted in civilian court for theft and assault, conspiring with other Sailors to use cocaine aboard USS NIMITZ, using and distributing cocaine aboard USS NIMITZ, and using marijuana.

Appellant pleaded guilty by various methods, including by exceptions. For example, among other charges, Appellant was charged with “introduction and distribution of cocaine.” Appellant pleaded guilty to this charge by excepting the words “introduction and,” and therefore Appellant only pleaded guilty to distribution of cocaine.

The military judge failed to address the excepted language in the announced finding. Appellant’s counsel did not object to this--rather, they explicitly stated the findings announcement was correct.

Appellant’s R.C.M. 1105 submission raised two issues: (1) whether the military judge had improperly used evidence from Appellant’s co-conspirators’ cases to sentence Appellant, and (2) whether Appellant’s sentence was disproportionate to the actual harm caused by Appellant’s conduct. The Court also addressed whether the military judge’s error to address the excepted language materially prejudiced Appellant’s rights.

Affirmed. The military judge did not improperly use evidence from Appellant’s co-conspirators’ cases, Appellant’s sentence was not disproportionate to the harm actually caused by Appellant, and the military judge’s error did not materially prejudice Appellant’s rights. Under U.S. v. Welker, 44 M.J. 85 (C.A.A.F. 1996), “[i]f there is no merit to the underlying errors raised, there will not be prejudicial error in the [Staff Judge Advocate]’s failure to address them.

Co-Conspirator Cases           
During the military judge’s providence inquiry, the military judge incorrectly called Appellant by one of Appellant’s co-conspirators’ names three times. Appellant raised no challenge to the military judge regarding that situation, nor any evidence to back his assertion that the military judge considered improper evidence in Appellant’s sentencing.

Disproportionate Sentence           
Appellant was convicted at a special court-martial and agreed in the pretrial agreement that his sentence to confinement would be capped at six months. The crimes Appellant pled guilty to would have carried a maximum punishment of 27 years’ confinement, a dishonorable discharge, and total forfeitures, had Appellant’s case been tried by a general court-martial. Three companion cases within the Staff Judge Advocate’s Recommendation showcased that Appellant’s sentence was the second lowest of the companion cases and lower than the maximum amount of confinement under his pretrial agreement. The Court also considered Appellant’s recent civilian conviction to justify Appellant’s sentence.

Incorrect Finding           
The military judge announced the finding only as “Guilty,” and did not address the excepted language. However, the impact of the erroneous announcement in the findings did not change the maximum punishment. The Court excepted the language “introduce and” from the finding of Guilty as to that specific charge. The excepted language was set aside and dismissed by the Court.

Shlomo Amar

Intern