United States v. Harden
201600063
| N.M.C.C.A. | Dec 6, 2016Background
- Appellant, a Marine recruiter, engaged in sexual relationships with two high school students he met while recruiting and later continued contacting them despite orders.
- Command issued military protective orders (MPOs) prohibiting contact with recruits and the two students; appellant violated those MPOs.
- Appellant entered a pretrial agreement (PTA) pleading guilty to two violations of a general order prohibiting intimate recruiter-recruit relationships and three MPO violations; the PTA included a term that the government would not object to admission of written statements in extenuation and mitigation.
- At sentencing the defense sought to admit two emails from the recruiting station commander: one preferring administrative separation over a bad-conduct discharge; the other criticizing the appellant’s legal advice. Trial counsel objected and the military judge excluded both emails as not proper extenuation or mitigation.
- Appellant raised three assignments of error on appeal: (1) government breached the PTA by objecting to the emails making his pleas improvident; (2) the general order violates equal protection; (3) the convening authority erred by referring charges after potential victims asked that he not be court-martialed. The court affirmed.
Issues
| Issue | Appellant's Argument | Government/Respondent's Argument | Held |
|---|---|---|---|
| Government breached PTA by objecting to two commander emails offered in extenuation/mitigation | Emails were "written statements" from witnesses covered by PTA and thus government agreed not to object | Emails were not proper extenuation or mitigation evidence and objection did not breach PTA | Court: No breach; emails not extenuation/mitigation, objection permissible |
| General order barring intimate relationships between recruiters and students violates Fifth Amendment equal protection | Order discriminates without adequate justification | Order is lawful regulation of conduct by recruiters, not unconstitutional | Court: Raised personally by appellant and without merit; no error |
| Convening authority erred by referring charges after recruits requested no court-martial | Victims requested no prosecution, so referral was improper | CA has discretion to refer despite victims’ wishes; no error in proceeding | Court: Raised personally by appellant and without merit; no error |
Key Cases Cited
- United States v. Smead, 68 M.J. 44 (C.A.A.F. 2009) (standard for interpreting PTAs and when noncompliance warrants relief)
- United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (examples of mitigation evidence categories)
- United States v. Britt, 48 M.J. 233 (C.A.A.F. 1998) (statement about speculative administrative separation is not mitigation or extenuation)
- United States v. Tangpuz, 5 M.J. 426 (C.M.A. 1978) (discussion of mitigation evidence types)
- United States v. Clifton, 35 M.J. 79 (C.A.A.F. 1992) (procedural issues raised personally by appellant reviewed on the merits)
- United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) (outline of cases that may be raised personally by an appellant)