United States v. Sergeant LUAVASA F. TAUALA, JR.
2016 CCA LEXIS 498
| A.C.C.A. | 2016Background
- Appellant Sgt. Luavasa F. Tauala, Jr. was tried by general court-martial and convicted (contrary to plea) of aggravated assault, assault consummated by a battery (lesser-included), perjury, child endangerment, and related offenses; sentence included BCD, confinement, forfeitures, and reduction.
- Perjury charge (Art. 131(2), UCMJ) alleged Tauala submitted a false unsworn declaration "under penalty of perjury as permitted under 28 U.S.C. § 1746" in a state court family proceeding about his wife’s injuries.
- Defense moved to dismiss perjury count for failure to prove the statement was made pursuant to § 1746; military judge rejected that premise at trial, treating the statutory reference as a legal matter needing no evidentiary proof.
- Military judge instructed the panel that “likely” (in aggravated assault) required risk “more than merely fanciful, speculative, or remote” and that magnitude must be “at least probable,” instruction later found erroneous.
- Appellant alleged illegal pretrial punishment based on a brigade commander’s derogatory remark to him; the military judge found the remark was made but concluded it was not intended to punish; the court of criminal appeals disagreed that the judge properly applied Article 13 analysis.
- Post-trial: appellant submitted clemency matters; authenticated record and SJA recommendation reached confinement facility 5 Jan 2015 and convening authority acted the same day; appellant did not reserve right to submit additional matters.
Issues
| Issue | Government's Argument | Tauala's Argument | Held |
|---|---|---|---|
| Sufficiency of perjury conviction under Art. 131(2) (§ 1746 scope) | Statute reference in charge covers the declaration; perjury proven by false declaration as charged | § 1746 applies to federal proceedings only; military perjury under Art. 131(2) cannot reach state-court unsworn declarations not made pursuant to § 1746 | Perjury conviction reversed and Charge III dismissed — Art. 131(2) reaches false statements made pursuant to § 1746 in federal proceedings only. |
| Jury instruction on meaning of “likely” for aggravated assault | Instruction was adequate to convey risk/magnitude elements | Instruction misstated the standard; "likely" should be assessed in plain English and not by requiring more-than-remote risk or probable consequence | Instructional error was constitutional and prejudicial; conviction for aggravated assault reduced to lesser-included assault consummated by a battery. |
| Illegal pretrial punishment (Article 13) based on commander's remark | Remark was not intended to punish; even if inappropriate, no punitive intent and no legitimate nonpunitive justification not present | Remark was degrading and punitive; violated Article 13 | Military judge erred in finding no Article 13 violation; Court finds remark constituted illegal pretrial punishment but grants no relief as any remedy would be disproportionate. |
| Post-trial clemency opportunity (R.C.M. 1105) | Convening authority acted lawfully; appellant waived right to submit further matters by not reserving it | Appellant was deprived of meaningful opportunity to participate in clemency due to convening authority acting the day record arrived | No error — appellant waived right to submit additional matters and did not identify withheld matters; convening authority’s action stands. |
Key Cases Cited
- United States v. Gutierrez, 74 M.J. 61 (C.A.A.F.) (explaining plain-English standard for whether conduct was "likely" to cause grievous bodily harm)
- United States v. Killion, 75 M.J. 209 (C.A.A.F.) (failure to give correct jury instructions can deny due process)
- United States v. Wolford, 62 M.J. 418 (C.A.A.F.) (harmlessness analysis for instructional error)
- United States v. Kreutzer, 61 M.J. 293 (C.A.A.F.) (standards for harmless constitutional error review)
- United States v. Zarbatany, 70 M.J. 169 (C.A.A.F.) (relief for Article 13 violations must be meaningful but proportionate)
- United States v. Winckelmann, 73 M.J. 11 (C.A.A.F.) (principles for reassessing sentence on appeal)
- United States v. Sales, 22 M.J. 305 (C.M.A.) (procedure for sentence reassessment)
- United States v. Cruz, 25 M.J. 326 (C.M.A.) (Article 13 covers degrading comments constituting punishment)
- Bell v. Wolfish, 441 U.S. 520 (Supreme Court) (punitive intent analysis and legitimate governmental objective inquiry)