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2015 Case Results

Case Results For The Years 2012-2015

2015

U.S. v. E-8 (First Sergeant), Army E-8 initially accused of sexual assault but faced special court-martial for adultery with the wife of his subordinate and 2 additional specification (alleging multiple acts) of Article 134, conduct to the prejudice of good order and discipline and service discrediting.  Officer panel convicted E-8 of adultery and some of the acts contained in the other Article 134 specification. E-8 was sentenced to be reduced to E-4. No confinement, no punitive discharge.

U.S. v. E-5, AF E-5 faced charges of kidnapping a child (not his own – 17 years old) from a city bus stop and keeping her in his home and sexual assault x 2. AF E-5 had a prior incident where he was given an LOR for communicating with a 15-year old girl in a sexual manner. Through pretrial motion practice, defense kept out the prior interactions with the 15-year old girl. AF E-5 was acquitted of kidnapping and acquitted of sexual assault x 2; AF E-5 was, however, convicted of a lesser-included offense of assault consummated by a battery for a touch on the leg. AF E-5 was sentenced to be reduced to E-4 and 20 days confinement.

U.S. v. O-3, Army O-3 made to show cause why O-3 should continue to serve based on an underlying General Officer Memorandum of Reprimand for falsifying a physical fitness card and making misleading statements to the investigating officer. By pointing out the insufficiencies in the investigating officer, including material irregularities in the evidence, and pointing out motivation for those with access to have created the fictitious card, respondent was found to have committed no misconduct and accordingly was retained on active duty. Army O-3 will next use our services to apply to the DASEB to remove the GOMOR based on the injustice of its filing. The board president pledged to provide a memorandum in support of removing the GOMOR from Army O-3’s OMPF.

U.S. v. E-5, Army E-5 faced general court-martial charges of making false official statements x 3 and for larceny of BAH and CONUS COLA. Army E-5 was acquitted of making 2 of the 3 false official statements and acquitted of larceny of CONUS COLA. Army E-5 was sentenced to be reduced to the grade of E-3, to be confined for 7 months, and a bad conduct discharge. During the course of the trial, the military judge overruled several defense objections that permitted irregular documentation to be taken into evidence; appeals are pending.

U.S. v. O-3, Army O-3 was pending elimination at a BOI for allegations of adultery with the wife of a subordinate, for conduct unbecoming, and for creating a hostile working environment for that subordinate. The board president that was originally appointed had personal knowledge of the allegation and admitted that he trusted the word of the Officer that told him that the O-3 had committed the misconduct. I challenged the member but the next senior Officer on the board denied my challenge. In his answer denying the challenge, I denied that member as well. The next senior member denied my challenge of the second member and then I renewed my challenge of the president to the junior member, who was the only unchallenged member. The junior member sustained my challenge of the president and a new member was appointed to replace him. The board had also been scheduled on a date that the detailed military counsel was not available due to court-martial appearance but the board went forward despite our objections. We presented thirty pieces of substantive documentary evidence, including evidence that the subordinate engaged in an “open marriage” and a swinging lifestyle with his spouse. After uncovering and presenting ironclad evidence that the subordinate had issues of credibility, the board found no misconduct. O-3 was retained in service.

U.S. v. O-4, Army O-4 was accused of sexually assaulting the nineteen year-old daughter of a fellow military school classmate while she was too intoxicated to legally consent, for providing her intoxicating liquor, and for conduct unbecoming. Defense filed multiple motions that raised procedural error including that a favorable recommendation by the Article 32(b) hearing officer was not reported to the convening authority, resulting in the government’s dismissal of the affected specification. Defense also filed a motion to admit evidence of the complainant’s sexual behavior toward the O-4 from the night in question and her sexual behavior toward other males at the club that night. Armed with favorable rulings, defense was able to paint an accurate picture of the complainant’s behavior. Defense also presented expert testimony concerning reconstructed memory to successfully argue that when the complainant awakened the next morning with disjointed recollection of events and regretted her decision, she came to the faulty conclusion that she must have been sexually assaulted and filled in memories to support her conclusion. O-4 was acquitted of sexual assault and conduct unbecoming, but convicted of providing her intoxicating liquor. O-4 was sentenced to forfeit some pay and to a reprimand.

U.S. v. O-3, Army O-3 was pending command action for an investigation that he had engaged in an adulterous affair with an E-4 subordinate from his command. The O-3’s estranged O-3 spouse provided “evidence” to his command of the affair. Defense investigation revealed that the messages that purported to have been transmitted between O-3 client and E-4 were a complete fabrication by the O-3 estranged spouse. Command took no action against O-3 client, lifted his flag, which enabled him to apply for a career-enriching military school that accepted him.

2014

U.S. v. E-7, USMC–E-7 was originally charged with multiple specifications of sexual assault (by bodily harm and by placing in fear) of an E-2 while both were serving on duty. E-7 was also charged with sexually harassing the same E-2, with sexually harassing one additional E-2, and with sexually harassing an E-3. E-7 was also charged with fraternizing with the two E-2s. E-7 pleaded guilty to the one specification of fraternizing with one E-2 for having consensual sexual intercourse with her when she claims she was sexually assaulted. Defense investigation uncovered two witnesses who overheard the E-2 who was claiming sexual assault refer to their sexual encounter as consensual in a laughing and joking manner. Defense investigation also found a witness who overheard the E-2 tell her friends that she “just made it up to avoid getting in trouble”. This E-2 claimed that she did not resist the sexual advances of the E-7, say no, or fight back at all because she was afraid of him as a senior NCO. Defense uncovered evidence that this E-2 flirted multiple times with a different senior NCO and that the night of the alleged assault she flirted with a man whom she believed to be a senior NCO. Despite the defense’s evidence, the government went forward to general court-martial. At trial, E-7 was fully acquitted of sexual assault and sexual harassment. The panel convicted E-7 of one specification of fraternization. The retirement eligible E-7 was reduced to E-5, confined for 60 days, and restricted for 30 days. Now an E-5, he can retire after more than 20 years of service in the USMC.

U.S. v. O-5, USA – O-5 was originally investigated at a previous duty station for sexually assaulting a patient during the scope of an allegedly fraudulent medical exam by touching her areolas and clitoris. After a hospital command investigation and an Army CID investigation, the command declined to prosecute him and instead the commanding general issued him a general officer memorandum of reprimand, which he filed in the O-5’s official personnel file. O-5 made a PCS move to a new duty assignment and continued to see patients. The reprimand triggered a board of inquiry to determine of the O-5 should continue with service. O-5 fought hard at the board and the board concluded no misconduct had occurred. While awaiting the final action from the board, the chief prosecutor of the new duty station decided his office should recommend prosecution at a court-martial for the almost 5-year old accusation of sexual assault from the previous duty station. O-5 hired Ms. Stewart to fight the accusations at court-martial. After litigating multiple motions to dismiss for violations of due process for oppressive pre-preferral delay, O-5 was fully acquitted at trial of multiple specifications of sexual assault and O-5 was fully acquitted at trial of multiple specifications of conduct unbecoming an officer and a gentleman. O-5 will continue to serve out his time until he chooses to retire un-impacted by the accusations, his medical license in tact and his ability to practice medicine unencumbered.

U.S. v. E-7, USA – E-7 was charged with raping an Army E-6 and forcibly sodomizing the E-6. E-7 was acquitted of every offense from the charge sheet, but was convicted of one lesser-included offense that the military judge instructed on. E-7 was reduced to E-5 and confined for 60 days.

2013

U.S. v. E-6, USAF – Ms. Stewart represented this E-6 in two separate court-martials. In her first court-martial, E-6 was charged with three separate specifications for having three separate unprofessional relationships with trainees when she was their training leader and for making a false official statement to AFOSI during the investigation. During pretrial litigation, Ms. Stewart suppressed E-6’s statement to AFOSI for their blatant disregard of E-6’s rights. The prosecution was forced to dismiss the specification of false official statement before trial. The military judge also granted Ms. Stewart’s pretrial motion to preclude the government prosecutor from asking any questions about false statements to AFOSI of the defense’s good military character witnesses. Finally, the military judge denied the government’s motion to preclude the defense from raising the defense that one of the airman trainees was trying to shield other airman from his homosexual activities by inventing a sexual relationship with E-6. At the first trial, a general court-martial, E-6 was fully acquitted of all three specifications.

Immediately after her court-martial acquittal, E-6 was given immunity and an order to cooperate in the investigation of a fellow female training leader. E-6 cooperated and provided information to prosecutors about information she had about the other female training leader. E-6 was forced to testify during the other female training leader’s court-martial. The other female training leader was convicted and sentenced, but her sentence did not include any jail time or punitive discharge. The government used the information E-6 had provided them to charge the other female training leader again and leveraged a discharge in lieu of court-martial against the other training leader. Soon after the other female training leader’s second court-martial was settled, the government gave the other female training leader immunity and an order to provide information concerning E-6. From the information the other female training leader gave prosecutors, E-6 was charged with one specification of unprofessional relationship with one different trainee airman while she was his training leader.

When her commander called her in to read the charge to her, he quipped that “this time” she “wouldn’t be able to handle that fancy attorney”. E-6 looked her O-5 commander in the eye and said, “I won’t go to court without her.” The government had hoped they would be able to leverage a discharge in lieu of court-martial and that E-6 would quietly surrender. Instead, E-6 hired Ms. Stewart to defend her.

Ms. Stewart had realized early that the government made a critical flaw in their charging decision and that they had only charged E-6 with having an unprofessional relationship during the time that both the trainee and she were in the same command, which amounted to 1 day of alleged misconduct. The military judge agreed and was not going to let the government prosecute her for any conduct other than the single day of alleged wrongdoing. The government opted to dismiss the charge and prefer anew. The government had already flown witnesses from Afghanistan and Italy for trial, and they believed they would be able to have the trial the following day. Ms. Stewart reminded the prosecutors that since they were post-arraignment, E-6 would have to consent to the joinder of the offenses and that E-6 would not. As a result, the case was continued for several months. During the recess, E-6 explained the procedural background of the case that the government had omitted from the packet: that the other female training leader’s prosecution was that they had secured her discharge with information obtained from E-6’s grant of immunity. Ms. Stewart began preparation of a nearly thirty-page motion to dismiss E-6’s second court-martial under violations of E-6’s privilege of self-incrimination. After reading the motion and the hundreds of pages of attachments, the government dismissed the charge against E-6 because they realized they had violated her rights and that it was not possible to prosecute her ever again. E-6 left active service voluntarily; her discharge was honorable. E-6 has since joined the reserve component.

U.S. v. E-6, USN – E-6 was charged with burglary, sexual assault by grabbing her breasts and vaginal area, and with cruelty and maltreatment of his subordinate E-4 during a deployment. E-6 hired Ms. Stewart early in the process, while NCIS was still conducting its investigation. Ms. Stewart conducted a thorough interview of the E-4’s roommate who provided evidence that the E-4 had consented to sexual activity. The roommate testified at the Article 32(b) and much of the wind was let out of the government’s sails. But the prosecution persisted and even with the consent defense, the greatest risk was a conviction for the lesser-included offense of unlawful entry since there was no evidence that anyone provided E-6 permission to enter the quarters. After litigating multiple motions including a robust motion pertaining to other sexual behavior of the complaining witness, the government approached the defense with a proposal that E-6 plead guilty to an assault consummated by a battery and for unlawful entry, both at a misdemeanor level, and without any waiver of an administrative separation board. After much deliberation and internal debate, E-6 elected to plead guilty to avoid any possibility of sexual offender registration, federal conviction, and a true shot at being retained in the service. E-6 was sentenced to reduction to E-4, confinement for 45 days, and restriction for 45 days. E-6 was retained in the service.

U.S. v. E-6, USA – E-6 was investigated by Army CID for larceny of government property. E-6 hired Ms. Stewart early during the investigation. Ms. Stewart assisted E-6 in providing a statement to law enforcement concerning the origin of the scope at issue in the investigation. Ms. Stewart advocated to the command that E-6’s only culpability was in accepting a gift from a contractor in theater after the stranger learned of E-6’s heroism in battle. E-6 ultimately received a letter of concern, filed locally, that has had zero impact on E-6’s service or career.

U.S. v. E-6, USN – E-6 charged with larceny of government property andreceipt of stolen property for stealing TV and other electronic equipment from the unit and currency from gift cards that were acquired from returning government property to commercial stores. Unfortunately, E-6 waived his rights and gave several statements to NCIS and admitted that he was aware that the items the supply NCO was providing him were government property and that he knew the gift cards came from the refunds of government property. After fully contesting the charges, E-6 was convicted of larceny, acquitted of receiving stolen property, but sentenced to be reduced to E-1, a bad conduct discharge, and a fine of $2300 and if the fine was not paid, then 45 days confinement.

2012

U.S. v. Cadet, USAF – Cadet was charged with one specification of sexual assault of a fellow cadet. The complainant’s sworn statement and her Article 32(b) testimony did not articulate a sexual assault; she articulated facts and circumstances that indicate consent, no matter what she claimed she was thinking at the time of the sexual activity. After Cadet and complainant flirted over instant messaging, complainant came to Cadet’s room after taps; after entering the room, the two began to kiss and complainant interrupted the kissing to ask if Cadet had locked his door. Cadet locked the door, and they resumed kissing; complaining interrupted to ask if Cadet had a condom. Sexual activity ensued including the changing of position at the behest of complainant. Despite complainant’s outward consent, she claimed that she did not want to have sexual activity with Cadet. Cadet hired Ms. Stewart early during AFOSI’s investigation. During a defense interview of a fellow cadet, Ms. Stewart learned that the complainant was instant messaging this other cadet within one hour of the sexual activity with Cadet; Ms. Stewart acquired the messages, and in these messages, complainant told her fellow cadet that she would never file charges against Cadet because “it was not like he ever heard me say stop” because “he was just so into it.” Complainant cried during a break after being confronted with her words to her fellow cadet. The general dismissed the charge and its specification, and cadet graduated with his class, and was commissioned into service.

U.S. v. O-3, USA – O-3 was pending command investigation for adultery. O-3 hired Ms. Stewart to represent him to facilitate him providing a statement to the command in the hopes of securing the lowest possible consequence to the characterization of his service. O-3 was pending normal termination of service at the time the investigation began. Ms. Stewart was able to facilitate general officer non-judicial punishment and O-3 was permitted to leave service with an honorable characterization of service.

U.S. v. E-4, USA – E-4 was charged with wrongfully possessing child pornography on multiple digital devices. Federal law enforcement noted known images of child pornography associated with a given user’s LimeWire account and traced the IP address back to E-4’s household. E-4 resided with a spouse and a teenage stepson, both who claimed no knowledge of child pornography. E-4 declined to make a statement. The Article 32(b) revealed the digital forensic exam of the digital devices was less than thorough but did note nearly contemporaneous logins to E-4’s online college courses. E-4’s spouse emigrated from Russia and the logins associated with the acquiring of the child pornography was traced to her and the images were obtained from Russian sites. Most of the images depicted Russian females the same age as the teenage stepson. E-4 elected to plead guilty in exchange for a sentence cap of no more than fifteen months.

U.S. v. E-2, USA – E-2 was charged with the premeditated murder of a fellow E-2, who was his friend. E-2 was also charged with resisting arrest, larceny, and failing to remain at his place of duty. E-2 was found with the car keys of the decedent, the room key of the decedent, and law enforcement found a knife among E-2’s possessions that contained E-2’s fingerprint on the handle and the decedent’s blood on the shaft of the blade. Defense challenged the nature of the weapon as the “murder weapon” by introducing expert testimony from a forensic pathologist who attested that the nature of the injury was not likely originating from the knife the government touted as the “murder weapon”. Defense also challenged the thoroughness of the investigation and noted multiple opportunities of DNA contamination by military investigators. Ultimately, E-2 was convicted and sentenced to life without eligibility of parole.

U.S. v. CW2, USCG – CW2 was investigated by NCIS for sexually assaulting two female civilian spouses by allegedly groping them on the breast and vaginal area at an off-base drinking establishment. CW2 contacted Ms. Stewart early in the investigation and Ms. Stewart advocated to the command representatives for a favorable outcome. Ultimately, CG prosecutors recommended to the command, at Ms. Stewart’s urging, to give CW2 admiral level NJP for assault consummated by a battery. CW2 was reprimanded, restricted to limits for a period of time, and required to forfeit some pay.

U.S. v. E-4, USA – E-4 was investigated by Army CID for rape after a third party reported E-4. The third party represented to Army CID that a female civilian had confided in him that E-4 had raped her while they were dating. Female civilian declined to make a statement at all and insisted that law enforcement were harassing her by continuing to try to investigate the matter without her cooperation or consent. Third party and E-4 had a history of animosity and third party had a previously substantiated Equal Opportunity investigation against him; third party blamed E-4 for his EO violation. After much advocacy by Ms. Stewart, Army CID declined to substantiate the allegation and Army prosecutors declined to prosecute E-4. E-4 was permitted to continue in his military service.

U.S. v. E-6, USA – Special Forces E-6 was investigated by Army CID for rape of a female interpreter in Afghanistan after a third party initiated the investigation, claiming that the female interpreter had informed him of the rape. E-6 hired Ms. Stewart early during the investigation stage. After a command investigation into alleged GO1 violations concerning alcohol and the Army CID investigation into sexual assault, Army CID unsubstantiated the rape allegation and E-6 was found innocent of any GO1 violation. E-6 continued to serve.

U.S. v. E-7, USA – Special Forces E-7 was investigated for patronizing a prostitute during the Summit of the Americas in Colombia during the Presidential security mission. Prior to hiring Ms. Stewart, E-7 turned down NJP for said behavior and wanted to go to court-martial. After the prosecution was able to track down the prostitute and a fellow Special Forces Soldier provided a statement against him, E-7 asked Ms. Stewart to negotiate the best possible outcome for him. Ms. Stewart negotiated an offer of NJP for violating a policy in that once he learned that she was a prostitute, he did not break contact with her.

* Only non-homicide LWOP sentences in the history of the Army JAGC

**Media coverage

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