

   
   
   
   U.S. v. Hawes



IN THE CASE OF
UNITED STATES, Appellee
v.
Wade P. HAWES, Second Lieutenant
U.S. Air Force, Appellant
 
No. 98-0199
Crim. App. No. 32481
 
United States Court of Appeals for the Armed
Forces
Argued February 11, 1999
Decided August 13, 1999
GIERKE, J., delivered the opinion of the
Court, in which COX, C.J., and CRAWFORD and EFFRON, JJ., joined. SULLIVAN,
J., filed a dissenting opinion.

Counsel
For Appellant: Captain Natasha V. Wrobel
(argued); Colonel Douglas H. Kohrt and Captain Michael J. Apol
(on brief); Lieutenant Colonel Kim L. Sheffield and Lieutenant
Colonel Ray T. Blank.
For Appellee: Major Steven B. Thompson
(argued); Lieutenant Colonel Michael J. Breslin and Captain Steven
D. Dubriske (on brief); Colonel Brenda J. Hollis, Lieutenant
Colonel Anthony P. Dattilo, Major Allen G. Erickson, and Major
Ronald A. Rodgers.
Military Judge: Hervey A. Hotchkiss


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge GIERKE deliverd the opinion of the Court.
Before a military judge sitting as a general
court-martial, appellant pleaded guilty to wrongfully using marijuana but
not guilty to fraternization, in violation of Articles 112a and 134, Uniform
Code of Military Justice, 10 USC §§ 912a and 934, respectively.
The military judge found appellant guilty of wrongfully using marijuana,
as alleged. The fraternization specification alleged that appellant, a
second lieutenant, hosted three enlisted airmen at his home, accompanied
them to public locations for personal, social reasons, consumed alcohol
with them, allowed the airmen to address him by his first name, and did
not require them to extend any military courtesies to him. The military
judge also found appellant guilty of fraternization, but only for allowing
the airmen to address him by his first name. The adjudged and approved
sentence provides for a dismissal, reprimand, and forfeiture of $500.00
pay per month for 2 months.
The Court of Criminal Appeals set aside appellants
conviction of fraternization, applying its statutory factfinding powers
under Article 66(c), UCMJ, 10 USC § 866(c), and stating, "[W]e are
not convinced beyond a reasonable doubt that appellants conduct amounted
to fraternization." Unpub. op. at 3. The court then reassessed and affirmed
the sentence, reasoning as follows:

Reassessing appellants sentence in light
of only the remaining marijuana use offense, we are convinced it would
have been the same. United States v. Peoples, 29 MJ 426 (CMA 1990).
The fraternization offense was relatively trivial in comparison to appellants
drug use with an airman.

Id. at 4.
This Court granted review of the following
issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
ERRED BY FAILING TO ORDER A REHEARING ON SENTENCE AFTER IT DISMISSED THE
CHARGE OF FRATERNIZATION.

We affirm the decision of Court of Criminal Appeals,
for the reasons set out below.
The facts on which the court below set aside
the conviction of fraternization and reassessed the sentence are summarized
in the courts unpublished opinion, as follows:

Appellant was a 25-year-old Air Force Academy
graduate serving as a combat missile crew commander at Malmstrom Air Force
Base, Montana. He encountered Senior Airman (SrA) Frimodt, a close friend
and classmate since kindergarten, after arriving at Malmstrom. The two
had lived 12 houses apart on the same street growing up.
SrA Frimodt was a security policeman assigned
to missile security duties. He lived in Great Falls, Montana, with his
wife and child in a basement apartment. Appellant lived outside of town
on a small ranch. Frimodt and his family visited appellant at his ranch,
where they would play with appellants puppies and ride appellants horses.
Frimodt would also visit appellants ranch alone or with airmen friends,
JV and RN. They would shoot on appellants target range, ride horses, or
see the puppies.
JV and RN were assigned to missile security
duties with Frimodt. RN eventually bought one of the puppies from appellant
at fair market price. During most of the visits to appellants ranch by
Frimodt with his family or friends, appellant was not present. On other
occasions, they saw appellant but did not visit with him. On a few occasions,
appellant was present and spoke to the visitors and, at least once, offered
refreshments to his visitors.
SrA Frimodt never called appellant by his first
name while on duty. During the few times they met on duty, Frimodt always
addressed appellant as sir or by his rank and rendered the expected military
courtesies. However, while off-duty at appellants ranch, Frimodt occasionally
called appellant by his first name. Frimodt initially introduced appellant
to JV as "my friend, Wade Hawes." All three airmen knew appellant was an
officer at the time of the alleged fraternization. With Frimodt present,
JV and RN both called appellant by his first name on one or two occasions
at appellants ranch. JV and RN never addressed appellant by his first
name if they encountered him on-duty. Appellant never corrected any of
the enlisted men when they used his first name, but he did not encourage
it nor did he have much contact with them when they visited the ranch.
In March 1996, Frimodt called appellant and
told him that he had talked to a mutual civilian friend from high school
who now lived in Helena, Montana. The friend said he would like to see
appellant. Frimodt told appellant he was driving to Helena the next day
and offered to give him a ride. Appellant accepted the offer and agreed
to meet at Frimodts house the next morning. When appellant arrived, Frimodt,
JV, and RN were all present. Frimodt had not told appellant the other two
would be going along. RN drove to Helena with appellant as a passenger
in the back seat. When they arrived, all four went fishing, but appellant
fished alone about 100 yards from the others. Because of bad weather, they
ceased fishing and went to a local restaurant where they all ate and drank
some beer together. While at the restaurant, appellant encountered a civilian
he had met at a rodeo. They all agreed to go to a bar together.
While at the bar, the three airmen played pool
and drank beer while appellant sat alone at the bar and drank beer. He
didnt play pool with them. The civilian from the Rodeo arrived with another
civilian and the two of them went outside with appellant and Frimodt. While
there, appellant and Frimodt smoked marijuana provided by the civilians
using a pipe made from a modified coke can. The three airmen later returned
to Great Falls, and appellant waited in the bar for his high school friend.
He returned to Great Falls the next day with his girlfriend who picked
him up in her car. During this trip to Helena, all three airmen may have
called appellant by his first name on occasion without objection from appellant.
It is unclear how often this occurred, but it was a few times at most.

Id. at 1-3.
Appellant now contends that the Court of Criminal
Appeals was required to order a sentence rehearing because it could not
possibly determine what appellants sentence would have been without the
fraternization conviction, since both offenses carry the same maximum punishment.
Both offenses are punishable by dismissal, total forfeitures, and confinement
for 2 years. See paras. 37e(1)(b) and 83e, Part IV, Manual for Courts-Martial,
United States (1995 ed.), and RCM 1003(b)(9)(A) and (B), Manual, supra.*
The Government argues that the court below did not abuse its discretion
because the record supports its conclusion that the fraternization was
a trivial offense.
When a Court of Criminal Appeals sets aside
a finding of guilty, it may purge the prejudicial impact of the error by
reassessing the sentence, if it can determine that "the accuseds sentence
would have been at least of a certain magnitude." United States v. Jones,
39 MJ 315, 317 (CMA 1994), quoting United States v. Sales, 22 MJ
305, 307 (CMA 1986). "No higher sentence may be affirmed by the appellate
court than would have been adjudged at trial absent the error." United
States v. Davis, 48 MJ 494, 495 (1998), quoting United States v.
Peoples, 29 MJ 426, 427-28 (CMA 1990). The Court of Criminal Appeals
may purge the prejudicial impact of the error by reassessing the sentence
instead of ordering a rehearing, "if it confidently can discern the extent
of the errors effect on the sentencing authoritys decision." Id.,
quoting United States v. Reed, 33 MJ 98, 99 (CMA 1991).
We review the lower courts reassessment for
abuse of discretion. "We will only disturb the [lower courts] reassessment
in order to prevent obvious miscarriages of justice or abuses of discretion."
Id., quoting United States v. Jones, 39 MJ 315, 317 (CMA
1994).
Appellant has the burden of persuading us that
the court below abused its discretion. We are not persuaded. The military
judge acquitted appellant of most of the fraternization allegations and
convicted him only of permitting a breach of military courtesy in an off-duty
setting. The Court of Criminal Appeals relied upon its military experience
and expertise and concluded that the fraternization offense was trivial
in comparison to appellants use of marijuana and that appellant would
have received "at least" a dismissal, a reprimand, and the modest forfeitures
adjudged. On this record, we are not persuaded that there has been an obvious
miscarriage of justice or abuse of discretion.
We do note, however, that while the court below
set aside the fraternization conviction and thereby removed that conduct
from this case, it did not remove the reference to "fraternization" from
appellants reprimand. To ensure that the impact of appellants conviction
of fraternization is fully removed from his sentence, we will set aside
so much of the reprimand as reads, "and fraternization with enlisted subordinates."
The decision of the United States Air Force
Court of Criminal Appeals is affirmed, except for so much of its decision
as affirms the portion of the reprimand containing the words "and fraternization
with enlisted subordinates." Those words are stricken from the reprimand.
FOOTNOTE:
* These provisions
are unchanged in the 1998 edition.
 
 
SULLIVAN, Judge (dissenting):
I disagree with the majority opinion as I did
in United States v. Davis, 48 MJ 494, 496 (1998)(Sullivan, J., dissenting).
The facts of this case make it highly unlikely that appellant would receive
the exact "same sentence" at a sentence rehearing. Id., citing United
States v. Sales, 22 MJ 305 (CMA 1986); cf. United States
v. Jones, 39 MJ 315, 317 (CMA 1994) (reassessment appropriate where
"the accuseds sentence would have been at least of a certain magnitude").
Appellant was found guilty of two offenses,
the marijuana offense to which he pleaded guilty and the fraternization
offense to which he pleaded not guilty. The fact that the present findings
include only the offense to which he pleaded guilty clearly puts him in
a more favorable posture before the sentencing court.
Also, each offense carried the same authorized
maximum punishment, a dismissal, forfeiture of all pay and allowances,
and 2 years confinement. See paras. 37e(1)(b) and 83(e), Manual
for Courts-Martial, United States (1995 ed.). Can it reasonably be said
that reduction of 50% in the maximum authorized punishment would have no
effect on the adjudged punishment? Would none of the $1,000 in forfeitures
be reduced?
The Court of Criminal Appeals reassessment
is wrong because it is highly unlikely that appellant would have gotten
the exact same sentence if he had been tried for one felony crime
rather than two. The court below may be expert in reassessing sentences,
but it cannot read the minds of a jury and a convening authority in a case
like this, where there is a major reduction of the crimes upon which the
sentence is fashioned. I would remand for a rehearing on sentence.

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