UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HAIGHT, PENLAND, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist TRAVIS L. GALLEGOS
United States Army, Appellant
ARMY 20130926
Headquarters, 7th Infantry Division
Jeffery D. Lippert, Military Judge
Lieutenant Colonel Michael S. Devine, Staff Judge Advocate
For Appellant: Captain Payum Doroodian, JA; Frank J. Spinner, Esquire (on brief);
Major Christopher D. Coleman, JA; Captain Payum Doroodian, JA; Frank J. Spinner,
Esquire (on reply brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Steven J. Collins, JA; Captain Anne C. Hsieh, JA (on brief)
20 June 2016
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MEMORANDUM OPINION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
WOLFE, Judge:
A military judge sitting as general court-martial convicted appellant, pursuant
to his pleas, of one specification of disobeying a superior commissioned officer, in
violation of Article 90, UCMJ, 10 U.S.C. § 890 (2012) [hereinafter UCMJ].
Contrary to his pleas, the court-martial convicted appellant of two specifications of
aggravated assault of a child and one specification of assault consummated by
battery of a child, in violation of Article 128, UCMJ. 1 The court-martial sentenced
appellant to a bad-conduct discharge, confinement for eleven years, and a reduction
to the grade of E-1. The convening authority approved the sentence as adjudged.
1
Appellant was acquitted of one specification of maiming (in violation of Article
124, UCMJ) and one specification of assault consummated by battery.
GALLEGOS—ARMY 20130926
This case was referred to us pursuant to Article 66(b), UCMJ. Appellant
raises three assignment of error, two of which merit discussion and one of which
merits relief. 2 The matters raised personally by appellant pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982), do not merit additional discussion or
relief. 3
2
In the third assignment of error, appellant requests relief for dilatory post-trial
processing. We find no due process violation in the processing of appellant’s case.
Reviewing the appropriateness of the sentence in light of the unjustified dilatory
post-trial processing, we do not find relief is warranted. See UCMJ art. 66(c);
United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article
66(c), UCMJ, service courts are] required to determine what findings and sentence
‘should be approved,’ based on all the facts and circumstances reflected in the
record, including the unexplained and unreasonable post-trial delay.”); see generally
United States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); United States v. Ney,
68 M.J. 613, 617 (Army Ct. Crim. App. 2010); United States v. Collazo, 53 M.J.
721, 727 (Army Ct. Crim. App. 2000).
3
Appellant’s submission, like the first assigned error, argues that the evidence was
factually and legally insufficient. Additionally, appellant personally argues that his
counsel at trial was ineffective for not introducing several exhibits. Although
labeled as submissions pursuant to United States v. Grostefon, appellant’s
submissions are more accurately described as a pro se appellate brief. Compare
United States v. Grostefon (counsel shall submit all issues that appellant wants
raised) with Martinez v. Court of Appeals, 528 U.S. 152, 163 (2000) (no right to
self-representation on direct appeal from a criminal conviction); see also McMeans
v. Brigano, 228 F.3d. 674, 684 (6th Cir. 2000) (a criminal appellant does not have “a
constitutional entitlement to submit a pro se appellate brief on direct appeal in
addition to the brief submitted by appointed counsel”); United States v. Ogbonna,
184 F.3d 447, 449 (5th Cir. 1999); United States v. Gwiazdzinski, 141 F.3d 784, 787
(7th Cir. 1998) (declining to accept the defendant’s pro se brief on appeal from his
federal conviction because a “defendant does not have an affirmative right to submit
a pro se brief when represented by counsel”).
Additionally, after the government filed a response, appellant filed both a
reply brief and a pro se reply brief.
This court has often chosen not to distinguish between appellate counsel
submitting “issues” on behalf of the appellant as required by Grostefon and the
submission of pro se briefs by appellant. That is, while a close reading of Grostefon
provides only for the submission of “issues” by counsel, we have often permitted the
submission of substantive briefs pro se. There are several potential concerns: First,
(continued . . .)
2
GALLEGOS—ARMY 20130926
BACKGROUND
Prior to the beginning of the trial on the contested specifications, appellant
pleaded guilty to a violation of Article 90, UCMJ, by disobeying an order from his
company commander to have no contact with his wife, Mrs. CG.
Appellant’s convictions under Article 128, UCMJ, all stem from allegations of
severe child abuse occurring during the first month after his son KG was born.
Evidence introduced at trial overwhelmingly showed that KG had suffered
significant injuries, to include fractures to his skull, left femur, left tibia and
multiple ribs. Bleeding within his skull resulted in the death of brain tissue and
nearly resulted in KG’s death. Finally, KG suffered from hemorrhages in all layers
of his eyes that were “too numerous to count” and resulted in irreversible vision
loss.
The government’s case-in-chief included numerous expert witnesses in the
medical field who described KG’s injuries and offered opinions on the possible
traumatic events that would be consistent with those injuries. The evidence
introduced at trial easily established that KG’s injuries were the result of abusive
trauma. Additionally, the evidence established that the only two individuals–
appellant and his wife, Mrs. CG–had the opportunity to cause the injuries to KG.
Accordingly, the focus at trial, and again on appeal, was not whether KG had been
abused, but instead whether the government had proven beyond a reasonable doubt
who committed the abuse.
The government’s case established the culpability of the accused through the
testimony of Mrs. CG and by admitting appellant’s pretrial statements. Mrs. CG did
not directly witness any abuse but did testify to appellant’s opportunity to injure
KG. Appellant’s statements were admitted through Mrs. CG, medical personnel, and
through special agents from the Army Criminal Investigation Command (CID).
Mrs. CG testified that when they first discovered that KG was unresponsive
and they were going to take him to the emergency room, appellant first did online
research on mental retardation and told Mrs. CG that “I don’t know if he’s a quiet
(. . . continued)
the filing of pro se briefs (whether styled as Grostefon matters or not) may be an
end-run around this court’s rules such as page limits. See Army Court of Criminal
Appeals Internal Rules of Practice and Procedure, R. 15.1(g). Second, when a pro se
brief is filed out of time–as was the case here–our ability to control our docket and
allow an effective government response is diminished.
However, in this case the government did not object to appellant’s pro se
filings. Accordingly, and as we find appellant’s pro se arguments to be easily
understood, we considered appellant’s submissions in their entirety.
3
GALLEGOS—ARMY 20130926
baby now, but he’s acting retarded right now.” After both parents took KG to the
emergency room, appellant told Mrs. CG that “You know what this looks like, right?
It looks like we played ping pong with our kid.”
Appellant then told Mrs. CG that if asked, they should both “just say we were
giving him a bath and that he banged his head accidentally on the faucet.” Later,
when interviewed by CID, appellant offered that KG had been injured by hitting his
head on the faucet. When pressed, appellant also offered that he banged KG’s car
seat against the door when bringing him inside, that he later stepped on the car seat
flipping it over, and that while giving KG a bath, his head slipped out of his hands
and KG’s head hit the side of the sink.
Ultimately, appellant stated that he was lying on the bed and was playing with
KG by tossing him into the air. He stated that he failed to catch KG and that KG
then bounced off the bed hitting the bedframe and wall. Appellant reconstructed this
event with a doll in front of CID agents. KG was less than a month old during all
relevant time periods.
While the government admitted all of appellant’s statements, the government
did not argue that any one of the statements was true. 4 Rather, the government
offered expert medical testimony that none of appellant’s explanations could account
for all of KG’s injuries. Appellant did not testify at his court-martial.
LAW AND DISCUSSION
A. Factual Sufficiency.
Article 66(c), UCMJ, requires a Courts of Criminal Appeals to conduct a de
novo review of legal and factual sufficiency of the case. We may affirm a
conviction only if we conclude, as a matter of factual sufficiency, that the evidence
proves appellant's guilt beyond a reasonable doubt. United States v. Sills, 56 M.J.
239, 240-41 (2002); United States v. Turner, 25 M.J. 324, 324-25 (C.M.A. 1987).
Such a review involves a fresh, impartial look at the evidence, giving no deference
to the decision of the trial court on factual sufficiency beyond the admonition in
Article 66(c), UCMJ, to take into account the fact that the trial court saw and heard
the witnesses. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
4
At trial, the government sought a conviction on the maiming specification, which
requires as a specific intent the “intent to injure.” UCMJ art. 124; Manual for
Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶ 50.c.(3).
While appellant’s statements were evidence of negligent and culpably negligent
conduct, none of appellant’s statements included an admission of a specific intent to
harm KG. The offenses for which appellant was convicted, and consistent with
appellant’s statement that he tossed his newborn son into the air, require only a
culpably negligent mind. MCM, pt. IV, ¶ 54.c.(1)(b)(ii).
4
GALLEGOS—ARMY 20130926
When conducting such a review, we are limited to the evidence admitted at trial.
United States v. Bethea, 22 U.S.C.M.A. 223, 224-25, 46 C.M.R. 223, 224-25 (1973);
United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007). 5
After giving appropriate deference to the court-martial’s ability to “see and
hear the witnesses” we find the evidence in this case to be factually sufficient in all
but one aspect. 6 The specification of the additional charge alleged appellant
committed an assault upon KG by “pushing an object and body part” into KG’s
mouth with unlawful force. In our review of the record, we find insufficient facts to
support that a “body part” was forcibly inserted into KG’s mouth and will provide
relief in our decretal paragraph.
B. Appropriateness of Sentence to Confinement.
Appellant’s second assignment of error alleges that his sentence to eleven
years of confinement was inappropriately severe.
5
We note that the matters submitted by appellant pursuant to Rule for Court-Martial
[hereinafter R.C.M.] 1105 included a letter to appellant that purported to be from
Mrs. CG. In the letter, Mrs. CG all but admits that she caused KG’s injuries. The
authenticity of the letter is entirely unclear. Appellant does not raise this issue on
appeal and has not filed a petition for a new trial based on new evidence. See UCMJ
art. 73. Accordingly, we may not consider this letter when determining the factual
sufficiency of the evidence. Finally, we note that appellant’s reply brief includes a
footnote that states appellant intends to file a petition for a new trial. As of the date
of this opinion, that has not yet happened.
6
As we stated in United States v. Crews, 2016 CCA LEXIS 127, *at 11-13 (Army
Ct. Crim. App. 29 Feb. 2016):
The deference given to the trial court's ability to see and
hear the witnesses and evidence—or "recogni[tion]" as
phrased in Article 66, UCMJ—reflects an appreciation that
much is lost when the testimony of live witnesses is
converted into the plain text of a trial transcript. While
court-reporter notes may sometimes reflect a witness's
gesture, laugh, or tearful response, they do not attempt to
reflect the pauses, intonation, defensiveness, surprise,
calm reflection, or deception that is often apparent to
those present at the court-martial. A panel hears not only
a witness's answer, but may also observe the witness as he
or she responds. For instance, a transcript may state "I am
showing the witness prosecution exhibit 13 for
identification" but will leave unstated the witness's
demeanor—whether surprise, recognition, or dread, when
reviewing or confronted with evidence.
5
GALLEGOS—ARMY 20130926
This court “may affirm only . . . the sentence or such part or amount of the
sentence, as [we] find[] correct in law and fact and determine[], on the basis of the
entire record, should be approved.” UCMJ art. 66(c). “[T]he Courts of Criminal
Appeals [have] not only . . . the power to determine whether a sentence is correct in
law and fact, but also . . . the highly discretionary power to determine whether a
sentence” should be approved. United States v. Lacy, 50 M.J. 286, 287, (C.A.A.F.
1999). While this court has “broad authority” under Article 66(c), UCMJ, to
approve only that part of the sentence that “should be approved” this power is based
on “legal—not equitable—standards . . . .” United States v. Nerad, 69 M.J. 138, 140
(C.A.A.F. 2010). 7
At trial, the military judge prompted the defense to move for treating the two
aggravated assault specifications as one for sentencing. The military judge then
granted the motion. 8 Accordingly, the military judge correctly calculated that the
maximum confinement was twelve years: five years for the combined aggravated
assaults of a child, two years for assault consummated by battery of a child, and five
years for disobeying a superior commissioned officer. On appeal, appellant argues
that the eleven year term of confinement, broken down into its constituent parts,
means that as a matter of arithmetic, 9 appellant was sentenced to four years of
confinement for disobeying his company commander’s order to have no contact with
Mrs. CG. Appellant argues that a four year sentence for violating a no-contact order
is inappropriately severe. We disagree with appellant’s analysis for two related but
independent reasons.
7
Although Nerad involved consideration of a CCA’s authority to determine whether
a finding “should be approved” our superior court’s analysis applies equally to
determining whether a sentence “should be approved.” Id.; UCMJ art. 66(c).
Indeed, the authority for us to approve the findings and the sentence are conjoined in
the same phrase in Article 66(c), UCMJ. Our cases have long distinguished between
the convening authority’s clemency powers (i.e. equitable) under Article 60, UCMJ,
and this court’s authority to reduce a sentence under Article 66, UCMJ. See e.g.
UCMJ art. 60 (2012) (the convening authority may “in his sole discretion”
disapprove, commute or suspend a sentence).
8
In granting the defense’s motion, the military judge found “as a matter of fact” that
the two specifications of aggravated assault contained in Charge II “were from the
same incident of misconduct.” As the defense did not raise the issue of
unreasonable multiplication of charges for findings (at trial or on appeal), we find
that appellant forfeited this issue at trial and that any error did not amount to plain
error.
9
That is, appellant argues that even if appellant received the maximum possible
confinement for the Article 128, UCMJ, violations (i.e. seven years out of a possible
seven years) an eleven year sentence means appellant received a four-year sentence
for the single violation of Article 90, UCMJ.
6
GALLEGOS—ARMY 20130926
First, we disagree that when an accused has been convicted of several
offenses, on appeal we should try to reconstruct how each offense was punished
individually. Courts-martial impose unitary sentences. United States v. Weymouth,
43 M.J. 329, 336 (C.A.A.F. 1995) (“In the military . . . the ‘unitary’ sentence
precludes concurrent sentencing.”); see United States v. Elliott, 51 M.J. 334
(C.A.A.F. 1999) (summ. disp.); see also Rule for Courts-Martial R.C.M. 1006(c)
(requiring proposed sentences to include “the complete sentence”); R.C.M. 810(a)(3)
(requiring a single adjudged sentence in a rehearing); RCM 1002 (“Subject to the
limitations in this Manual, the sentence to be adjudged is a matter within the
discretion of the court-martial. . . .”; but cf R.C.M. 1003(c)(1)(C) (“Multiplicity.
When the accused is found guilty of two or more offenses, the maximum authorized
punishment may be imposed for each separate offense.”) (emphasis added).
Recently, the President has codified the requirement for unitary sentences. See
Executive Order No. 13,730, 81 Fed. Reg. 33,331 (May 20, 2016) (amending R.C.M.
912(f)(1)(F) to require unitary sentencing). We do not believe it proper—or wise—
to try to untangle from a unitary sentence what each part of a non-unitary sentence
may have been and then determine whether each constituent part is “appropriate.”
Rather, our duty is a holistic one, to determine whether, on the basis of the entire
record, the entire sentence is appropriate given both the offenses and the offender.
Second, we disagree with appellant’s assertion that—in the context of this
case—his Article 90, UCMJ, violation was “relatively insignificant as disobedience
offenses go . . . . [and but for the other offenses] would have been handled via non-
judicial punishment.” Appellant’s conduct took place while he was part of a rear
detachment unit with minimal staffing. Appellant’s commander testified during
sentencing as follows:
I would continually receive phone calls from [appellant’s]
spouse and his mother-in-law and emails from the two of
them stating that he was still contacting the family. He
was still - - he was just blatantly disregarding the no
contact order. So I brought him in again, reiterated to him
again and at that time once again he was just straight up,
“I understand there’s a no contact order, but I want to see
my son and my family. I’m just going to do it anyway.” I
don’t care.” Right along - - just those lines.
The company commander further testified that because he was the only officer in the
company, and had very few noncommissioned officers to enforce discipline, “trying
to enforce good order and discipline in the unit was extremely difficult. . . .”
Accordingly, given the severity of appellant’s offenses, we find appellant’s
sentence to be appropriate.
7
GALLEGOS—ARMY 20130926
CONCLUSION
The court AFFIRMS only so much of the finding of guilty of the Specification
of The Additional Charge as finds that:
In that [appellant], U.S. Army, did, at or near Joint Base
Lewis-McCord, Washington, between on or about 8
December 2012 and on or about 10 December 2012,
commit an assault upon Master [KG], a child under the
age of 16 years, by pushing an object into said Master
[KG’s] mouth with unlawful force causing a torn
frenulum.
The remaining findings of guilty are also AFFIRMED.
We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
In conducting a sentence reassessment, a Court of Criminal Appeals must
“assure that the sentence is appropriate in relation to the affirmed findings of guilty,
[and] that the sentence is no greater than that which would have been imposed if the
prejudicial error had not been committed.” Sales, 22 M.J. at 307-08 (quoting United
States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985)). “[I]f the court can determine to
its satisfaction that, absent any error, the sentence adjudged would have been of at
least a certain severity, then a sentence of that severity or less will be free of the
prejudicial effects of error. . . .” Sales, 22 M.J. at 308.
In evaluating the Winckelmann factors, despite dismissing a portion of the
Specification of The Additional Charge, there is no dramatic change in the penalty
landscape, as the maximum punishment faced by appellant remains the same.
Second, appellant was tried and sentenced by a military judge sitting alone. As
such, we are more likely to be certain of the sentence the military judge would have
adjudged absent a finding of guilty as to the dismissed language and are convinced
the military judge would have sentenced appellant to at least the sentence adjudged.
Third, the gravamen of the criminal conduct within the original offenses remains
substantially the same. Appellant remains convicted of disobeying a superior
commissioned officer, two specifications of aggravated assault of a child, and one
specification of assault consummated by battery of a child, all stemming from the
same series of events that included the conduct underlying the language dismissed in
the Specification of The Additional Charge. Thus, neither the penalty landscape nor
8
GALLEGOS—ARMY 20130926
the vast majority of admissible aggravation evidence – including the overwhelming
evidence of KG’s severe and, in many ways, permanent injuries – has changed.
Reassessing the sentence based on the noted errors and the entire record, we
AFFIRM the approved sentence of a bad-conduct discharge, confinement for eleven
years, and reduction to the grade of E-1. All rights, privileges, and property, of
which appellant has been deprived by virtue of that portion of the findings set aside
and dismissed by this decision are ordered restored. See UCMJ arts. 58b(c) and
75(a).
Senior Judge HAIGHT and Judge PENLAND concur.
FOR THE COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
9