UNITED STATES v. Anthony A. KOWALSKI
Docket No. 1330
UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS
15 December 2010
United States v. Anthony A. KOWALSKI, No. 1330 (C.G.Ct.Crim.App. 2010)
Fireman (E-3), U.S. Coast Guard; CGCMG 0265; Washington, D.C.
Military Judge: CAPT Gary E. Felicetti, USCG
Trial Counsel: LT Jowcol I. Viña, USCGR
Assistant Trial Counsel: LT Gregory J. Knoll, USCGR
Civilian Defense Counsel: Mr. David M. Brahms
Detailed Defense Counsel: LT Trevor J. Grant, JAGC, USN
Appellate Defense Counsel: LT Kelley L. Tiffany, USCGR
Appellate Government Counsel: LT Herbert C. Pell, USCGR
BEFORE
MCCLELLAND, LODGE & TOUSLEY Appellate Military Judges
McCLELLAND, Chief Judge:
Appellant was tried by general court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of attempting to communicate indecent language to minors, in violation of
Before this court, Appellant has assigned the following errors:
- Appellant‘s pleas of guilty to specifications 30, 31 and 32 to Charge II were improvident since the preemption doctrine applies to these specifications.
- Appellant‘s pleas of guilty to specifications 31 and 32 to Charge II were improvident because the military judge failed to establish a substantial basis in law and fact that Appellant took a substantial step to attempt at enticement or persuasion as to the underlying crimes of sodomy and carnal knowledge.
- Appellant‘s pleas of guilty to specification 30 to Charge II were improvident because the military judge provided conflicting instruction as to the law so that Appellant did not understand what he was pleading guilty to.
- This court should consider the unreasonable and unexplained post-trial delay in determining the sentence that should be approved under
Article 66(c) .
We affirm the findings, and we grant some sentence relief on account of post-trial delay.
Preemption
Appellant argues that his convictions of three specifications under
Manual for Courts-Martial (MCM), United States (2005 ed.),1 Pt IV, ¶ 60c(5)(a) explains, “The preemption doctrine prohibits application of
Whoever, using the mail or any facility or means of interstate or foreign commerce, . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned . . .
The three specifications at issue were in the following form:
. . . did, at or near [location], [date range], using the Internet, a means of interstate commerce, knowingly attempt to persuade and entice [an identified individual], whom the said FN Kowalski believed to be a [minor], to engage in sexual activity for which a person may be charged with a criminal offense, to wit: Article [125 or 120] of the Uniform Code of Military Justice, in violation of Title 18, United States Code § 2422(b), such conduct being prejudicial to good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces.
In two instances, the crime “for which a person may be charged” was sodomy under
Appellant‘s arguments that Congress intended prosecutions for sodomy and carnal knowledge to be limited to Articles 125 and 120, or attempts thereof to be limited to
Providence of two pleas to 18 U.S.C. § 2422(b)
Appellant pleaded guilty to two specifications under
The legal standard for determining whether a guilty plea is provident is whether the record presents a substantial basis in law or fact for questioning it. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). The record must contain a sufficient factual basis to support the plea. MCM, Rule for Courts-Martial (R.C.M.) 910(e). The accused must believe and admit every element of the offense. United States v. Whiteside, 59 M.J. 903, 906 (C.G.Ct.Crim.App. 2004) (citing R.C.M. 910(e) Discussion). A military judge‘s decision to accept a guilty plea is reviewed for an abuse of discretion. United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). A military judge abuses this discretion if he fails to obtain from the accused an adequate factual basis to support the plea. Inabinette, 66 M.J. at 322. Also, a ruling based on an erroneous view of the law constitutes an abuse of discretion. Id.
The elements of the offense alleged in Charge II, Specification 31 were correctly set forth by the military judge as follows:
That from 17 to 21 April 2006, at or near Rhinebeck, New York, you knowingly used the Internet to attempt to persuade and entice an individual using the Internet chat name “jjessiegirll“, who was under the age of 18, to engage in sexual activity as charged;
Second, that you believed that such individual was less than 18 years of age;
Third, that if the sexual activity had occurred you could have been charged with a criminal offense under
Article 120, UCMJ ;Fourth, that you acted knowingly, willfully and wrongfully;
Fifth, Section 2422(b) of Title 18 U.S. Code was in existence; and
Sixth, that under the circumstances, your conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
[There are definitions that apply.]
Okay, an act is wrongful if done without legal justification or excuse.
An act is done knowingly if done voluntarily and intentionally and not because of a mistake or accident or other innocent reasons.
It is not necessary for the individual to be, in fact, . . . less than 18 years of age, but it is necessary that you believed such individual to be under that age.
It is also not necessary for the individual to actually be persuaded or enticed to engage in sexual activity, but it is necessary that you intended to engage in some form of unlawful sexual activity with the individual and knowingly and willfully took some action that was a substantial step toward bringing about or engaging in that sexual activity.
Conduct prejudicial to good order and discipline is conduct which causes a reasonably direct and obvious injury to good order and discipline. Service discrediting conduct is conduct which tends to harm the reputation of the service or lower it in public esteem.
Okay, now back to the elements. It is also necessary that, if the intended sexual activity had occurred, you could have been charged with a criminal offense of carnal knowledge under
Article 120 of the UCMJ , as it existed at the time. In order to be guilty of carnal knowledge, all of the following must be true:That at the proposed time and place, you committed an act of sexual intercourse with with “jjessiegirll“;
That “jjessiegirll” was not your wife; and
That at the time of the proposed act of sexual intercourse, “jjessiegirll” was under 16 years of age.
(R. at 145-47.)
Concerning Specification 31, Appellant acknowledged that he understood the elements and definitions and understood that, by his guilty plea, he admitted that they accurately described what happened; he further admitted that the elements, in fact, accurately described what happened. (R. at 147.) The issue is whether there is a factual basis for his plea to this offense. Prosecution Exhibit 3 contains electronic conversations (“chats“) pertaining to the offenses; pages 22/102 – 31/102 of Prosecution Exhibit 3 are the chats with “jjessiegirll,” the individual identified in Specification 31.
In a chat in December 2005, Appellant proposes to have intercourse with “jjessiegirll” when he comes home, flying into Albany, and she seems receptive. (Prosecution Ex. 3 at 22/102.) In a chat in January 2006, she proposes that he come to her house for intercourse when he flies in, and he promises to do so. (Prosecution Ex. 3 at 23/102.) In a chat in March 2006, he reminds her of the plan to have intercourse when he gets home, and she invites him to do so “anytime u want.” (Prosecution Ex. 3 at 24/102.) These chats set the context for later chats when he is at home in New York State.
In a chat on 17 April 2006, he asks for her address, indicating that he would be coming from Kingston. She reaffirms her desire to have intercourse, and he asks for her address again. However, she does not respond further that day. (Prosecution Ex. 3 at 26/102.)
In a chat on 18 April 2006, he expresses a desire to have intercourse, she responds in kind, and he asks for directions. Later he asks if she wants to have intercourse, she responds positively, and he points out that she hasn‘t given her address. He asks for her address again, but she expresses concern for “mom finding out.” He tries to reassure her and asks for her address again, but she does not respond further that day. (Prosecution Ex. 3 at 27/102.)
During the providence inquiry, Appellant pointed out that the purpose of his asking for her address was to meet, and that getting the address would lead to the sexual activity. (R. at 148-50.)
Appellant now argues that the failure to arrange an actual rendezvous constitutes a failure to take a substantial step. However, the failure to arrange a rendezvous was not for lack of effort on his part. In the circumstances, obtaining her address was the critical and essential step to arranging a rendezvous. We consider his repeated request for her address, given the context established by the explicit chats, a substantial step. See United States v. Lee, 603 F.3d 904, 915 (11th Cir. 2010); United States v. Dwinells, 508 F.3d 63, 73 (1st Cir. 2007); United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007); United States v. Thomas, 410 F.3d 1235, 1246 (10th Cir. 2005); United States v. Bailey, 228 F.3d 637, 640 (6th Cir. 2000). We find the military judge did not abuse his discretion in accepting Appellant‘s guilty plea to Specification 31; we see no substantial basis to question that plea.
Concerning Specification 32, as with Specification 31, Appellant acknowledged that he understood the elements and definitions and understood that, by his guilty plea, he admitted that they accurately described what happened; he further admitted that the elements, in fact, accurately described what happened. (R. at 158.) Again, the issue is whether there is a factual basis for his plea to this offense. Pages 1/102 – 21/102 of Prosecution Exhibit 3 are the chats with “liberta_della_guerra,” the individual identified in Specification 32.
In a chat on 17 April 2006, a Monday, Appellant observes that “liberta_della_guerra” is in Massachusetts while he is in New York until Friday; he offers to take a road trip. (Prosecution Ex. 3 at 1/102.) When she indicates that oral sex is a hobby for her, he invites her to engage in it with him and apparently transmits an image of his genitals, to which she expresses approval and indicates that she would like to engage in oral sex with him. (Prosecution Ex. 3 at 3/102.) He
Appellant (A): so do u think u could come down here
liberta_della_guerra (ldg): why not
A: how u gonna get here
ldg: i have my ways
A: i just thought it would be easier u know ur parents are always home mine arent
A: u know what I mean
ldg: yea
A: how early could u get down here
ldg: idk
(Prosecution Ex. 3 at 8/102.)
In a chat the next day, after it appears they have talked on the phone, he urges her repeatedly to “get here.” (Prosecution Ex. 3 at 12/102 - 14/102.) He continues his importuning on the following two days. (Prosecution Ex. 3 at 19/102 - 20/102.)
These chats, like those supporting Specification 31, reflect Appellant‘s efforts to arrange a rendezvous. In this instance, he mostly aims to have “liberta_della_guerra” travel to his location. This gives his efforts with respect to Specification 32 a vague air compared with those relating to Specification 31, but they do not look like fantasies, as Appellant now argues. In the exchange quoted above, as soon as he received a positive response to his suggestion for her to travel, he attempted to pin down the details, until her vague response conveyed that no details were to be had. We consider his efforts to arrange a rendezvous, given the context, a substantial
Providence of plea to Charge II Specification 30
Appellant raises a novel argument concerning one of the specifications under
Appellant also argues that the specification runs afoul of United States v. Williams, 327 U.S. 711 (1946). Williams interpreted the Assimilative Crimes Act, now codified as
Post-trial delay
Appellant urges us to grant meaningful sentence relief on account of unreasonable post-trial delay.
The original sentence was confinement for sixty-five months, reduction to E-1, and a dishonorable discharge. In accordance with the pretrial agreement, the Convening Authority approved the sentence and suspended confinement in excess of thirty months for twelve months after release from confinement. He was credited with 341 days of pretrial confinement.
Processing of the record of trial (record or ROT) took place according to the following chronology. This chronology is taken from the memorandum dated 16 November 2009 forwarding the record to Coast Guard Headquarters (CGHQ)6 and from the ancillary documents attached to the record.
| Date | Action | Days elapsed |
|---|---|---|
| 18 Feb 09 | Sentence adjudged | 0 |
| 17 Mar 09 | Trial counsel received notice of discovery failure | 27 |
| 04 Apr 09 | ROT received by trial counsel from transcriptionist | 45 |
| 06 Apr 09 | Defense counsel submitted clemency request | 47 |
| 13 Apr 09 | Trial counsel sent new materials to Defense | 54 |
| 22 Apr 09 | Trial counsel completed examination of ROT | 63 |
| 15 May 09 | Trial counsel notified military judge of discovery issue | 86 |
| 06 Jun 09 | Military judge issued order re discovery | 108 |
| 20 Jul 09 | Discovery issue resolved; ROT authenticated | 152 |
| 29 Jul 09 | Authenticated ROT received by trial counsel | 161 |
| 03 Sep 09 | Staff Judge Advocate‘s Recommendation (SJAR) | 197 |
| 03 Sep 09 | SJAR & authenticated ROT sent to defense counsel | 197 |
| 30 Sep 09 | Further clemency materials received from Defense | 224 |
| 14 Oct 09 | SJAR addendum | 238 |
| 20 Oct 09 | Convening Authority action | 244 |
| 16 Nov 09 | Memorandum forwarding ROT to CGHQ | 271 |
The record was referred to this Court on 16 December 2009, fifty-seven days after the Convening Authority‘s action.
Notable periods of routine post-trial processing are forty-five days taken to transcribe the record (for a 365-page transcript), forty-five days between authentication and SJAR, and twenty-seven days between the Convening Authority‘s action and sending the record to Headquarters. The extraordinary post-trial discovery issue took 125 days to resolve, with the first external action taken twenty-seven days after Trial Counsel became aware of it. The Memorandum forwarding the record gives no explanation for these delays.
The Court of Appeals for the Armed Forces (CAAF) applies “a presumption of unreasonable delay that will serve to trigger the Barker four-factor analysis where the action of the convening authority is not taken within 120 days of the completion of trial [and] where the record of trial is not docketed by the service Court of Criminal Appeals within thirty days of the convening authority‘s action.” United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). The “Barker four-factor analysis” comprises consideration of the following four factors to determine whether post-trial delay constitutes a due process violation: “(1) the length of the delay; (2) the reasons for the delay; (3) the appellant‘s assertion of the right to timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135 (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).
The delays in this case are sufficient to raise the presumption of unreasonable delay, potentially constituting a due process violation. The Convening Authority‘s action was delayed 124 days beyond the 120-day period prescribed by Moreno for the convening authority‘s action, and twenty-seven days beyond the 30-day period prescribed for referral to this Court.
The post-trial discovery issue may constitute a case-specific justification for some delay as contemplated by CAAF in Moreno. (“Some cases will present specific circumstances
Appellant did not assert the right to timely review before the Convening Authority, although he did complain about the delay in Convening Authority action in his final clemency submission. The Convening Authority took action twenty days later. The third Barker factor does not weigh against the Government.
As to the fourth factor, Appellant claims prejudice in that he was eligible for parole, in accordance with SECNAVINST 5815.3J, Department of the Navy Clemency and Parole Systems,7 well before the Convening Authority acted, but the Parole Board would not consider his case until the Convening Authority had acted.
According to Appellant‘s affidavit dated 16 February 2010, attached to the record as Appendix C pursuant to his motion, he was confined at Naval Consolidated Brig Miramar both before and after trial. He submitted his parole and clemency request package in April 2009, two months after the trial. However, the Convening Authority‘s action, dated 20 October 2009, did not reach the brig or the Clemency and Parole Board (Board) until January 2010. Appellant‘s release date was to be 28 February 2010.
The Board‘s letter dated 19 February 2010, attached to the record as Appendix E pursuant to Appellant‘s motion, states that the Board denied Appellant parole on 17 February, and directs Mandatory Supervised Release at Appellant‘s minimum release date.
Although “no single factor [is] required to find that post-trial delay constitutes a due process violation,” Moreno, 63 M.J. at 136, in the absence of prejudice the other factors must be very weighty against the Government to warrant a due process violation finding, the delay being “so egregious that tolerating it would adversely affect the public‘s perception of the fairness and integrity of the military justice system.” United States v. Toohey, 63 M.J. 353, 361-62 (C.A.A.F. 2006). The convening authority‘s action in Toohey took place 644 days after the date of sentence, and the Court of Criminal Appeals issued its decision 2240 days (more than six years) after the date of sentence. By contrast, the delays in our case are not egregious. In the absence of prejudice, we find no due process violation.
We turn now to Appellant‘s argument that we should grant sentence relief under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), which held that we may grant relief for excessive post-trial delay without a showing of prejudice. Id. at 224. Upon finding unreasonable and unexplained post-trial delay, this Court may consider such delay, along with all the other facts and circumstances, in exercising its responsibilities under
The Government contends that, of the 244 days between sentencing and the Convening Authority‘s action, 126 were taken up in resolution of what we referred to above as the post-trial discovery issue, and that unreasonableness should be measured from the completion of that process. We reject this argument, because that process was a consequence of a Government management failure, as we said before. And even if we decided to disregard a portion of the
Moreover, if we consider only the time it took to obtain a transcript and the time from authentication to the Convening Authority‘s action, we arrive at a total of 137 days. This ignores review of the record by the trial counsel and the military judge, which would both surely have added more than a day. Finally, it was not until twenty-seven days after the Convening Authority acted that the record was sent to the Judge Advocate General. In each post-trial period – the handling of the post-trial discovery issue, the normal processing from end of trial to Convening Authority‘s action, and the post-action handling – we find a clear lack of the institutional diligence required in post-trial matters, resulting in unreasonable delay. See United States v. Holbrook, 64 M.J. 553, 557 (C.G.Ct.Crim.App. 2007); Greene, 64 M.J. 625, 628. We will consider the unreasonable delay when conducting our sentence appropriateness review under
Deficient findings
We note that when findings were announced, there was no finding as to the sole specification under Additional Charge I. A guilty finding was announced as to Additional Charge I. (R. at 268.)
We have reviewed the record in accordance with
Judges LODGE & TOUSLEY concur.
For the Court,
John T. Ure
Deputy Clerk of the Court