United States v. Rashke
ACM S32364
A.F.C.C.A.Mar 24, 2017Background
- Appellant pleaded guilty at a judge-alone special court-martial to multiple wrongful uses of marijuana between April 25 and June 15, 2015; plea and sentence were consistent with a pretrial agreement.
- Sentenced to a bad-conduct discharge, 45 days confinement, 45 days hard labor without confinement, and 45 days restriction; convening authority approved only the discharge and 45 days confinement.
- Appellant had six positive urinalysis results for marijuana metabolites between March 26 and June 15, 2015, and had previously received two nonjudicial punishments for marijuana use.
- Shortly before trial, Appellant indecently exposed himself to a pizza delivery person, provided alcohol to a minor, and was placed in pretrial confinement; while confined his commander issued a Letter of Reprimand (LOR) which Appellant responded to and for which the commander closed the matter.
- At sentencing the government offered the recently-issued LOR as part of Appellant’s personnel records; defense objected arguing the LOR was issued to aggravate punishment rather than for rehabilitative/management purposes.
- The military judge admitted the LOR, found it served a rehabilitative/management purpose, and the appellate court affirmed both the admission and the sentence as appropriate.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Admissibility of recently-issued LOR at sentencing | LOR was issued to aggravate sentence, not for rehabilitative/management purposes; should be excluded | LOR was a legitimate management/rehabilitative tool and part of personnel records admissible under R.C.M. 1001(b)(2) | Court affirmed admission; judge did not abuse discretion because record showed rehabilitative purpose and no evidence of improper motive |
| Sentence appropriateness | Sentence (BCD and 45 days confinement) was inappropriately severe | Sentence is appropriate given repeated drug use, prior NJPs, and lack of rehabilitative potential | Court affirmed sentence as correct in law and fact after de novo review |
Key Cases Cited
- United States v. Rhine, 67 M.J. 646 (A.F. Ct. Crim. App. 2008) (standard of review for sentencing-evidence admission)
- United States v. Boles, 11 M.J. 195 (C.M.A. 1981) (LOR inadmissible when issued primarily to aggravate court-martial outcome)
- United States v. Williams, 27 M.J. 529 (A.F.C.M.R. 1988) (LOR not admissible if commander’s purpose was to influence court-martial)
- United States v. Beaver, 26 M.J. 991 (A.F.C.M.R. 1988) (timing of LOR shortly before trial does not automatically render it inadmissible)
- United States v. Hood, 16 M.J. 557 (A.F.C.M.R. 1983) (LOR prepared after charges preferred can be admissible)
- United States v. Erickson, 65 M.J. 221 (C.A.A.F. 2007) (presumption military judges know and follow the law)
- United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006) (court’s de novo review authority for sentence appropriateness)