Petition for Writ of Certiorari — Cozart v. United States

Supreme Court, U.S.

FILED

991917 MAY 3 1200

No. .

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1999

CHIEF PETTY OFFICER FREDERICK L. COZART, Petitioner,

V.

UNITED STATES OF AMERICA, Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

CurTIS M. ALLEN

Captain, U.S. Marine Corps

Counsel of Record

Navy-Marine Corps Appellate

Defense Division

716 Sicard St. SE, ste. 1000

Washington Navy Yard, D.C. 20347

(202) 433-4161

QUESTION PRESENTED

IS RAPE OF AN ADULT WOMAN A CAPITAL

OFFENSE WITH AN UNLIMITED STATUTE OF

LIMITATIONS UNDER THE UNIFORM CODE OF

MILITARY JUSTICE?

(i)

TABLE OF CONTENTS

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Reasons for Granting the Petition .....0........cccccccccsesescscecesseseees 5

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iii

TABLE OF AUTHORITIES

Cases

United States Supreme Court:

Coker v. Georgia, 433 U.S. 584 (1977) ou... .eceeeceeeeeeees 5, 6,9

Furman v. Georgia, 408 U.S. 238 (1972) .....ceceecsseeeeenees 6,8

United States v. Jackson, 390 U.S. 570 (1968)............0:cce 8,9

United States Courts of Appeal:

Loux v. United States, 389 F.2d 911 (9" Cir.)

cert. denied, 393 U.S. B67 (1965) ..........scesscccscosossssecsseseoes 6

United States v. Cheeley, 36 F.3d 1439 (9" Cir. 1994)............ 7

United States v. Kennedy, 618 F.2d 557

CO Waals WIPO chi siesisiscasieediiichiinackasanaiclibiseitnouuniabiiiiminaua 7, 12

United States v. Manning, 56 F.3d 1188

Re, Fe iciiliasetniautancinnaicniciion 7-9, 12, 13

United States v. McNally, 485 F.2d 398

(8th Cir. 1973) cert. denied, 415 U.S. 978 (1974) ....... 6, 10

United States v. Provenzano, 423 F.Supp 662

(S.D. N.Y 1976) aff'd, 556 F.2d 562

LR, 7g ) Reem ere en Otay Cente eee 7-10, 12

United States v. Watson, 496 F.2d 1125

OF Ce, TORO ictccintadetaiiadiaamiien (ae Gb.

Willenbring v. Neurauter, 48 M.J. 152 (1998)............. 7,9, 13

Statutes

10 U.S.C. § 843 [Article 43, UCMJ}..0... eens passim

SO esa NI ei ccesderhcsincenstebNciab oubaieinasasbancdeninstiinsindusatilaceniien 1]

Oe a 8,9

is i a iawsueiad 5

P.L. 99-661, Div A, Title VIII, § 805

Is ae 5

Miscellaneous:

S. Rep. No. 99-331, at 249 (1986), reprinted

BE Be US. AAIN. GOES, GG vosvccecccececccscecessccccvesss 5,11

Uniform Code of Military Justice: Hearings on

H.R. 2498 before a subcommittee of the

Committee on Armed Services, House of

Representatives, 81° Cong. (1949)..............ccccccssscssesssscsessess 10

P.L. 99-661, Div A, Title VIII, § 805(a), (b), 100 Stat. 3908

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1999

CHIEF PETTY OFFICER FREDERICK L. COZART, Petitioner,

V.

UNITED STATES OF AMERICA, Respondent. m

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

Chief Petty Officer Frederick L. Cozart, U.S. Naval

Reserve (TAR), petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Armed

Forces.

OPINIONS BELOW

The orders of the Court of Appeals for the Armed

Forces, MJ. _, No. 990803/NA (C.A.A.F. January 24,

2000) and = =M.J. _, No 990803/NA (C.A.A.F. March 2,

2000) are not yet published and are located at Appendix A

(App. la-4a). The opinion of the Navy-Marine Corps Court of

Criminal Appeals, No. 9701396 (N.M.Ct.Crim.App. May 12,

1999) (unpublished opinion), is located at Appendix B (App.

Sa-16a).

(1)

JURISDICTION

The United States Court of Appeals for the Armed

Forces denied Petitioner’s motion for reconsideration on

March 2, 2000. (App. 3a-4a). This Court's jurisdiction is

invoked under 28 U.S.C. § 1259(3).

Until November 1986, 10 U.S.C. § 843, Article 43,

Uniform Code of Military Justice, [hereinafter UCMJ],

provided in pertinent part:

STATUTE INVOLVED

(a) A person charged with desertion or

absence without leave in a time of war, or with

aiding the enemy, mutiny, or murder, may be

tried and punished at anytime without

limitation.

(b) Except as otherwise provided in this

article, a person charged with desertion in a

time of peace or any of the offenses

punishable under sections 919-932 of this title

(articles 119-132) is not liable to be tried by

court-martial if the offense was committed

more than three years before the receipt of

sworn charges by an officer exercising

summary court-martial jurisdiction over the

command.

3

After Article 43 was amended on November 14, 1986, it

provided in pertinent part:

(a) A person charged with absence without

leave or missing movement in a time of war,

or with any offense punishable by death, may

be tried and punished at any time without

limitation.

(b) Except as otherwise provided in this

section (article), a person charged with any

offense is not liable to be tried by court-

martial if the offense was committed more

than five years before the receipt of sworn

charges and specifications by an officer

exercising summary court-martial jurisdiction

over the command.

STATEMENT OF THE CASE

Petitioner was initially charged with the rape of

Brigitte Ward, forcible sodomy upon Virginia Daniels,

adultery with Lisa Hutchins, and several violations of the

Navy’s sexual harassment instruction. Charge Sheet. The

alleged rape of Brigitte Ward occurred April 19, 1990,

although Petitioner was not formally charged until August

28, 1996.!

Following Petitioner’s arraignment on the initial

charges on September 11, 1996, the convening authority

referred additional charges to a different general court-

' A charge was originally preferred in May 1996, but was

withdrawn and re-preferred to reflect a major change. (Article

34, UCM], pretrial advice letter.)

4

martial. Record at 112-13. These additional charges a!leged

that Petitioner had raped his adult daughter, Chantrell

Graham, in August 1996.

At tral Petitioner moved to dismiss the rape charge

involving Brigitte Ward as barred by the statute of

limitations. Appellate Exhibit I. The military judge denied

Petitioner’s motion to dismiss the charge of rape, holding

that the statute of limitations for rape is indefinite. Appellate —

Exhibit XIII. Petitioner did not waive the issue. Record at

119, 120.

Petitioner was charged with and pled guilty to nine

specifications of failure to obey an order, two specifications of

rape, one specification of forcible sodomy, adultery, breaking

restriction and incest, violations of Articles 92, 120, 125, 134,

UCMJ [10 U.S.C. §§ 892, 920, 925 and 934] and Florida

Statute 836.04. Petitioner’s offenses were specifically charged

as non-capital offenses. Charge Sheet. On November 14,

1996 Petitioner was sentenced to 32 years of confinement,

forfeiture of all pay and allowances, reduction to the lowest

enlisted rank and a dishonorable discharge. In accordance

with a pretrial agreement, the convening authority suspended

confinement in excess of 17 years for 17 years.

On May 2, 1999, the Navy-Marine Corps Court of

Criminal Appeals affirmed the findings and sentence. [App.

Sa-16a] United States v. Cozart, No. 9701396

(N.M.Ct.Crim.App. May 2, 1999) (unpub. op.). On June 24,

1999, the Navy-Marine Corps Court of Criminal Appeals

denied Petitioner’s motion for en banc reconsideration, The

United States Court of Appeals for the Armed Forces

affirmed the decision of the lower court on January 24, 2000.

[App. la-2a] United States v. Cozart _ MJ. _, No.

990803/NA (C.A.A.F. January 24, 2000). The United States

Court of Appeals for the Armed Forces denied Petitioner’s

motion for reconsideration on March 2, 2000. [App. 3a-4a]

\

United States v. Cozart _ MJ. __, No. 990803/NA

(C.A.A.F. March 2, 2000).

REASONS FOR GRANTING THE PETITION

The Courts of Appeal are split over the correct

analysis to determine whether procedural laws

predicated upon a crime “punishable by death”

are invalidated by or survive a court’s ruling that

that crime may not be punished by death.

In Coker v. Georgia, 433 U.S. 584 (1977) this Court

held that a sentence of death is grossly disproportionate and

excessive punishment for the crime of rape and is forbidden

by the Eighth Amendment as cruel and unusual punishment.

Coker, 433 U.S. at 592. By 1986 Congress brought federal

criminal law in line with Coker. Title 18 U.S.C. § 2031,

under which rape was a capital offense, was repealed and

replaced with 18.U.S.C. § 2241. P.L. 99-654 §2, 100 Stat.

3660. The maximum punishment for rape under 18 U.S.C. §

2241 is life in prison.

On the same day 18 U.S.C. § 2031 was repealed,

Congress enacted changes to 10 U.S.C. § 843 to bring the

provisions of Article 43 in line with the federal criminal code

provisions. P.L. 99-661, Div A, Title VIII, § 805, 100 Stat.

3908; S. Rep. No. 99-331, at 249 (1986), reprinted in 1986

U.S.C.C.A.N. 6413, 6444. This changed the conceptual

foundation of Article 43 from one based upon the nature of

the crime to one based solely on the potential punishment.

An unforeseen result of the change to Article 43 was

that rape inadvertently became an offense for which there

was no statute of limitations. Under common principles of

statutory construction and under the legal analysis used by

6

the federal circuit courts to determine whether procedural

laws are invalidated by or survive a court’s ruling that a

crime may not be punished by death, in military as well as

civilian federal law, there is a five-year statute of limitations

for rape. The federal circuit courts generally agree on the

proper analysis. However, the reasoning of the Court of

Appeals for the Armed Forces is not in accordance with any

of the Courts of Appeal that have addressed this issue.

A.

The Court of Appeals for the Armed Forces has departed

from the established jurisprudence concerning the

applicability of procedural rules regarding crimes

punishable by death where the death penalty for that

crime is unconstitutional or not permitted.

In the wake of this Court’s decision in Furman y.

Georgia, 408 U.S. 238 (1972), and other decisions holding

that capital punishment was unconstitutional for certain

crimes, the Courts of Appeal have used two different

analytical frameworks for evaluating whether a procedural

rule dependent on the existence of a crime punishable by

death remains valid if the crime may no longer be punished

by death.

The Eighth Circuit uses a very simple test. If the

death penalty will not be imposed, either through judical

action or through agreement of the parties, the case loses its

capital nature. Therefore, the statutory provisions predicated

upon a capital offense do not apply. United States v.

McNally, 485 F.2d 398 (8th Cir.1973) cert. denied, 415 U.S.

978 (1974) (citing Loux v. United States, 389 F.2d 911 (9th

Cir.), cert. denied, 393 U.S. 867 (1968)). In Petitioner’s case

‘ the charge of rape lost its capital nature both through this

Court’s decision in Coker and through the convening

gin i cca neon

7

authority’s decision to charge Petitioner with non-capital

rape. Although the Court of Appeals for the Armed Forces

did not cite McNally in Willenbring v. Neurauter, 48 M.J.

152 (1998), its decision rejects the McNally court’s analysis.

The Second’, Fourth’ and Ninth’ Circuits have all

adopted a more complex test. In essence, the test is whether

the procedural statute’s purpose derives from the nature of

the offense with which the accused is charged or if the

Statute’s purpose derives from the potential severity of the

punishment for the crime. Manning, 56 F.3d at 1196 (citing

United States v. Kennedy, 618 F.2d 557, 558 (9th Cir. 1980)

citing Watson, 496 F.2d at 1128). See also Provenzano, 423

F. Supp at 665 (citing Watson).

If the statute’s purpose derives from the nature of the

offense, it remains in effect. /d. If its purpose derives from

the potential severity of the punishment, the procedural law

will lose its effect if capital punishment for the underlying

offense is no longer constitutional. /d.

By claiming to follow Manning yet failing to follow

the test used in Manning, the Court of Appeals for the Armed

Forces departed from this rule in Wellenbring.

Manning involved 18 U.S.C. § 1716, which

criminalized mail bombing and made it punishable by death.

However, the same Circuit had declared the death penalty for

violation of Section 1716 unconstitutional. United States v.

Cheeley, 36 F.3d 1439 (9th Cir. 1994). Manning argued that

as a result of Cheeley, the applicable statute of limitations was

18 U.S.C. § 3282, establishing a five year limitation for

- crimes not capital. Manning, 56 F.3d at 1195. The court

* United States v. Provenzano, 423 F. Supp 662 (S.D.N.Y

1976), aff'd, 556 F.2d 562 (2d Cir.1977).

> United States v. Watson, 496 F.2d 1125 (4th Cir. 1973).

* United States v. Manning, 56 F.3d 1188 (9th Cir. 1995).

8

disagreed, determining that Congress had intended to punish

mail bombing at any time whenever an offender was caught.

Manning, 56 F.3d at 1196. Therefore, because the statute of

limitations for the crime of mail bombing was tied to the

nature of the offense rather than the potential punishment, the

unlimited statute of limitations remained in effect.

Watson involved 18 U.S.C. § 1111, murder, which is

punishable by death. However, this Court’s decision in

Furman rendered the death penalty unconstitutional. 18

U.S.C. § 3005 requires a court to appoint a second counsel to a

defendant in a capital case upon the defendant’s request.

Watson requested a second counsel, but his request was

denied. Watson, 496 F.2d at 1126. The government argued

that the request was properly denied because under Furman

the crime was not capital. /d. The court disagreed, holding

that absent a clear legislative expression, it could not say that

the nght to two attorneys was solely derived from the potential

punishment of death. Watson, 496 F.2d at 1128. The court

also noted that it was more likely that section 3005 derived

from the nature of the offense, in that murder cases are

complex cases that would require an additional attorney. /d.

Therefore, because the provision for an additional court-

appointed lawyer was probably not solely as a result of the

potential punishment for murder, but because murder cases are

complex cases, the nght contained in 18 U.S.C. § 3005 was

not tied to the potential punishment, but tied to the nature of

the offense and thus remained in effect.

Provenzano involved 18 U.S.C. § 1201, which in

1961, the date of the alleged offense, made kidnapping a

capital offense if the victim was not returned unharmed.

Provenzano, 423 F. Supp at 664. However, this Court held the

death penalty provision of the statute unconstitutional in

United States v. Jackson, 390 U.S. 570 (1968). Moreover, in

1972 Congress amended 18 U.S.C. § 1201, eliminating the

9

possibility of capital punishment for the crime. Provenzano,

423 F. Supp at 664. The court reasoned that it may have been

the complexity and serious nature of the crime rather than

simply the possibility of the death penalty that led Congress to

make the statute of limitations unlimited for Provenzano’s

alleged crime. Provenzano, 423 F. Supp at 665, 666. If the

court were to make its decision on the basis of Jackson alone,

it would hold that Jackson did not make section 1201 non-

capital for purposes of the statute of limitations. Provenzano,

423 F. Supp at 666.

However, the Provenzano court had additional

information in the form of Congress’ amendment of section

1201 which removed the death penalty provision and made it

obvious that the unlimited statute of limitations was solely a

result of the potential penalty for the crime. The court held

that the five-year statute of limitation of 18 U.S.C. § 3282

applied to prosecutions under 18 U:S.C. § 1201, even though

when allegedly committed the crime was a capital offense.

Provenzano, 423 F. Supp at 667.

Willenbring involved 10 U.S.C. § 920, which

criminalized rape and made it punishable by death. However,

this Court had declared the death penalty for rape of an adult

woman unconstitutional. Coker v. Georgia, 433 U.S. 584

(1977). Willenbring argued that as a result of Coker, there

could be no capital offense and thus the statute of limitations

was five years. Willenbring, 48 M.J. at 178. The court

disagreed, adopting the result of Manning, that Congress had

intended to punish some crimes at any time whenever an

offender was caught. Manning, 56 F.3d at 1196 (mail

bombing). However, the Willenbring court failed to conduct

the legal analysis the Manning court performed. Had the

lower court applied any legal analysis of the issue, it would

have decided differently. By adopting without analysis the

result of Manning, the Court of Appeals for the Armed

10

Forces rejected the legal reasoning and analysis of Manning,

Watson and Provenzano. Without citing to McNally, the

Court of Appeals for the Armed Forces also rejected the

Eighth Circuit’s test for evaluating whether a procedural! rule

dependent on the existence of a crime punishable by death

remains valid if the crime may no longer be punished by

death.

B.

Application of the proper legal analysis to

Petitioner’s case.

The question in the instant case is whether the statute

of limitation’s purpose derives from the nature of the offense

of rape or if the statute of limitation’s purpose derives from

the potential severity of the punishment for rape.

From its inception in 1950 until 1986, the statute of

limitations -for violations of the Uniform Code of Military

Justice, Article 43, was based upon the nature of the crime,

not upon the possible punishment for the crime. Murder,

mutiny, aiding the enemy and desertion or absence without

leave during time of war were the only “types[s] of offense

that should not have any statute [of limitations] at all, by

virtue of its extreme seriousness.” Uniform Code of Military

Justice: Hearings on H.R. 2498 before a subcommittee of the

Committee on Armed Services, House of Representatives,

81* Cong. 1032 (1949). One member of the subcommittee,

Mr. Elston, did wonder why felonies such as rape, robbery,

burglary, arson, et cetera, were not also given an unlimited

statute of limitations. /d. at 1032, 1033. Mr. Larkin

explained to him that generally the States did have statutes of

limitations for most felonies, and that neither of the

predecessors to the UCMJ, the Articles of War and the

11

Articles for the Government of the Navy, exempted such

felonies from the statute of limitations. /d. at 1034. With the

exception of the capital offense “aiding the enemy” there

were no crimes added to the list of crimes whose nature

demanded that there should be no statute of limitations.

Although the question was raised, it was the judgement of

Congress that the crime of rape would have a statute of

limitations.

As opposed to the original Article 43, UCMJ, the

federal civilian statutes of limitation are based upon the

potential punishment for an offense. The statutes of

limitation for federal offenses are 18 U.S.C. § 3281 and 18

U.S.C. § 3282.

Section 3281 provides:

An indictment for any offense punishable by

death may be found at any time without

limitation except for offenses barred by the

provisions of law existing on August 4, 1939.

Section 3282 states:

Except as otherwise expressly provided by

law, no person shall be prosecuted, tried, or

punished for any offense, not capital, unless

the indictment is found or the information is

instituted within five years next after such

offense shall have been committed.

In 1986 Congress amended Article 43 to bring it in

line with the federal criminal code provisions on the statute

of limitations. S. REP. No. 99-331, at 249 (1986), reprinted

in 1986 U.S.C.C.A.N. 6413, 6444. The effect of this

amendment was to change the military statute of limitations

from one based upon the nature of the crime to a statute of

12

limitations based upon the possible punishment for a crime.

On the same day, Congress amended the federal rape statue.

As a result, the maximum punishment for the crime of rape

was set at life imprisonment. 18 U.S.C. § 2241. Thus, the

federal statute of limitations for rape was set at five years.

18 U.S.C. § 3282.

If the statute’s purpose derives from the nature of the

offense, it remains in effect. Manning, 56 F.3d at 1196

(citing United States v. Kennedy, 618 F.2d at 558 citing

Watson, 496 F.2d at 1128). See also Provenzano, 423

F.Supp at 665 (citing Watson). However, if its purpose

derives from the potential severity of the punishment, the

statute of limitation will lose its effect if capital punishment

for the underlying offense is no longer permissible. /d.

In this case it is abundantly clear that the current

unlimited statute of limitations is based solely upon the

potential severity of punishment; in fact, the plain language

of the statute reveals that it is predicated upon the

seriousness of the potential punishment. By way of

comparison, under the former military statute of limitations,

which was based instead on the nature of the crime itself, the

statute of limitations was 3 years.

Furthermore, Congress has decided that even under a

statute of limitations based upon the potential severity of

punishment, the statute of limitations for rape shall be five

years.

For the reasons cited in Manning, Watson and

Provenzano, the unlimited statute of limitations for offenses

punishable by death does not apply to the crime of rape.

Moreover, the additional reasoning found in Provenzano

regarding subsequent acts by Congress further strengthens

this conclusion.

13

CONCLUSION

The majority of civilian federal circuit courts that

have addressed the issue of whether to apply procedural rules

predicated upon the concept of a crime punishable by death

have done so in a consistent manner. If the procedural

statute’s purpose derives from the nature of the offense with

which the accused is charged, the statute remains in effect. If

the statute’s purpose derives from the potential severity of

the punishment for the crime, the law will lose its effect

where capital punishment for the underlying offense is no

longer possible. Both this Court and Congress have decided

that rape may not be punished by death. Congress has also

decided that in the military, the crime of rape is not a crime

that by its nature must have no statute of limitations. When

Congress, in addition to the judiciary, makes the

determination that an offense is not punishable by death, as

is the case here, this conclusion is made even more clear.

Although in Willenbring the Court of Appeals for the

Armed Forces purported to follow the 9" Circuit’s decision

in Manning, the court followed only the result of Manning.

Curiously, the court neither followed nor even mentioned the

legal analysis in Manning. To apply the proper legal test,

used by the Second, Fourth and Ninth Circuit courts, leads to

the opposite result; that the prosecution for the rape of

Brigitte Ward is time-barred.

During this, the 50" anniversary of the Uniform Code

of Military Justice, this Court should grant review of this

issue. This is essential to correct the error of the lower court,

protect the statutory rights of servicemembers and most

importantly, to bring the jurisprudence of the Court of

Appeals for the Armed Forces into line with that of the other

federal courts.

May 2000

14

Respectfully submitted,

CURTIS M. ALLEN

Captain, U.S. Marine Corps

Counsel of Record

Navy-Marine Corps Appellate

Defense Division

716 Sicard St. SE, ste. 1000

Washington Navy Yard, D.C. 20347

(202) 433-4161

—— ee ne ee

APPENDIX A z

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES

WASHINGTON, D.C. 20442-0001

UNITED STATES, ) USCA Dkt.

) No. 99-0803/NA

Appellee ) Crim. App. No. 97-1396

=

V.

ORDER

)

)

Frederick L. )

COZART (288-56-4723), )

Appellant +)

On consideration of the petition for grant of review of

the decision of the United States Navy-Marine Corps Court

of Criminal Appeals, it is, by the Court, this 24th day of

January, 2000,

ORDERED:

That said petition is hereby granted on the following

issue:

WHETHER THE MILITARY JUDGE CORRECTLY

DENIED APPELLANT’S MOTION TO DISMISS THE

ADDITIONAL CHARGE OF RAPING [BW] BECAUSE

THE FIVE-YEAR STATUTE OF LIMITATIONS UNDER

ARTICLE 43 HAD RUN.

We hold that the military judge did not err.

Accordingly, the decision of the United States Navy-Marine

Corps Court of Criminal Appeals is affirmed.

(la)

2a

For the Court,

/s/ Thomas F. Granahan

Clerk of the Court

*Judge Effron did not participate in this decision. See United

States v. Gorski, 48 MJ 317, 324, n. 9. This is without

prejudice to his future participation in this case should it

subsequently be presented to the Court in a manner that does

not require determination of the application of the Ex Post

Facto Clause to the amendments to Title 10, United States

Code, made by the National Defense Authorization Act for

Fiscal Year 1996, Pub.L. No. 104-106, 110 Stat. 462-63

(1996).

ce: The Judge Advocate General of the Navy

Appellate Defense Counsel (HARRIS)

Appellate Government Counsel (O’GRADY)

3a

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES

WASHINGTON, D.C. 20442-0001

UNITED STATES, ) USCA Dkt.

) No. 99-0803/NA

Appellee ) Crim.App. No. 97-1396

)

V.

ORDER

COZART (288-56-4723),

Appellant

)

)

Frederick L. )

)

)

On consideration of appellant’s petition for

reconsideration of the order of the Court issued on the 24th

day of January, 2000 and motion to substitute, it is, by the

Court, this, 2nd day of March, 2000,

ORDERED:

That said petition for reconsideration is hereby denied;

and

That said motion to substitute is hereby denied.

For the Court*,

/s/ Thomas F. Granahan

Clerk of the Court

4a

ce: The Judge Advocate General of the Navy

Appellate Defense Counsel (HARRIS)

Appellate Government Counsel (O°GRADY)

*Judge Effron did not participate in this decision. See United

States v. Gorski, 48 MJ 317, 324, n. 9. This is without

prejudice to his future participation in this case should it

subsequently be presented to the Court in a manner that does

not require determination of the application of the Ex Post

Facto Clause to the amendments to Title 10, United States

Code, made by the National Defense Authorization Act for

Fiscal Year 1996, Pub.L. No. 104-106, 110 Stat. 462-63

(1996).

Sa

APPENDIX B

IN THE U.S. NAVY-

MARINE CORPS COURT OF CRIMINAL APPEALS

WASHINGTON NAVY YARD

WASHINGTON D.C.

BEFORE

K.T. SEFTON JOHN W. ROLPH

DAVID W. PAULSON

UNITED STATES

v.

Frederick L. COZART, 288-56-4723

Chief Personnelman (Aviation Warfare)

(E-7), U.S. Naval Reserve (TAR)

NMCM 97 01396 Decided 12 May 1999

Sentence adjudged 14 November 1996. Military Judge: D.J.

D'Alesio, Jr.

Review pursuant to Article 66(c), UCMJ, of General

Court-Martial convened by Commander, Naval Base

Jacksonville, Naval Air Station, Jacksonville, FL.

LT DALE O. HARRIS, JAGC, USNR, Appellate Defense C

ounsel

LT J.K. O'GRADY, JAGC, USNR, Appellate

Government Counsel

6a

PAULSON, Judge:

Pursuant to his pleas, the appellant was found guilty

at a general court-martial, military judge alone, of 6

specifications of sexual harassment, 2 specifications of

violating lawful orders, providing alcohol to a minor, 2

specifications of rape, forcible sodomy, adultery, breaking

restriction, and incest, in violation of Articles 92, 120, 125,

and 134, Uniform Code of Military Justice, 10 U.S. C. §§

892, 920, 925, and 934 (1994). He was sentenced to 32

years confinement, forfeiture of all pay and allowances,

reduction to pay grade E-1, and a dishonorable discharge. In

his initial action dated 19 June 1997, the convening authority

approved the sentence as adjudged and, except for the

dishonorable discharge, ordered it executed. Pursuant to a

pretrial agreement, the convening authority suspended for a

period of 17 years from the date of his action that portion of

the sentence adjudging confinement in excess of 17 years. In

a supplemental action dated 11 January 1999, the convening

authority also suspended for 6 months from the date of his

supplemental order that portion of the sentence adjudging

forfeitures of $500 pay per month. He then waived the

automatic forfeiture of $500 pay per month for 6 months,

pursuant to Article 58b, UCMJ, contingent upon payment of

all such monies to the appellant's dependent spouse.

We have carefully reviewed the record of trial, the

appellant’s assignments of error', and the Government’s

response.

‘I. THE MILITARY JUDGE ERRED WHEN HE

DENIED DEFENSE COUNSEL'S MOTION TO

DISMISS THE ADDITIONAL CHARGE OF RAPING

BW BECAUSE THE FIVE-YEAR STATUTE OF

Ta

II.

If.

LIMITATIONS UNDER ARTICLE 43, UCMJ, HAD

RUN.

APPELLANT WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL WHERE HIS TRIAL

DEFENSE COUNSEL FAILED TO REQUEST THE

SUPPORTING DOCUMENTS FROM DNA TESTING

PERFORMED ON CRUCIAL EVIDENCE IN THIS

CASE.

THE MILITARY JUDGE COMMITTED PLAIN

ERROR BY ALLOWING A WITNESS TO TESTIFY

VIA TELEPHONE DURING APPELLANT'S

SENTENCING HEARING.

IV. THE CHANGES TO ARTICLE 57, UCMJ, AND

THE ADDITION OF ARTICLE 58b, UCMJ,

VIOLATE THE EX POST FACTO CLAUSE OF THE

CONSTITUTION WITH RESPECT TO THE

APPELLANT.

. APPELLANT WAS DENIED DUE PROCESS OF

LAW, WHERE THE DEFENSE FINANCE AND

ACCOUNTING SERVICE REFUSED TO EXECUTE

CLEMENCY GRANTED BY THE SECRETARY OF

THE NAVY IN THE NATURE OF WAIVING

FORFEITURES OF $500 PER MONTH.

VI. A 17-YEAR PERIOD OF SUSPENSION IS

UNREASONABLY LONG AND THEREFORE

AGAINST PUBLIC POLICY.

Vil. THE MILITARY JUDGE SHOULD HAVE

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RECUSED HIMSELF FROM PARTICIPATION AS

THE SENTENCING AUTHORITY IN

APPELLANT'S CASE, WHERE THE MILITARY

JUDGE WAS THE FORMER COMMANDING

OFFICER OF NAVAL LEGAL SERVICE OFFICE

SOUTHEAST, AND WHERE THE MILITARY

JUDGE RECEIVED EXTENSIVE EVIDENCE

ABOUT APPELLANT'S ALLEGED OFFENSES

DURING THE PRETRIAL MOTION STAGE.

Vill. APPELLANT'S COURT-MARTIAL LACKED

JURISDICTION WHERE APPELLANT'S

COMMANDING OFFICER (REDCOM 8) HAD

AUTHORITY TO CONVENE A GENERAL COURT-

MARTIAL FOR ANY CHARGES AGAINST

APPELLANT, BUT INSTEAD TRANSFERRED THE

CASE TO COMMANDER, NAVAL BASE

JACKSONVILLE, WITHOUT GOOD CAUSE.

IX. APPELLANT'S COURT-MARTIAL WAS TAINTED

BY UNLAWFUL COMMAND INFLUENCE, AS

EVIDENCED BY: 1) THE ARBITRARY TRANSFER

OF THE CHARGES FROM REDCOM 8 TO

COMMANDER, NAVAL BASE JACKSONVILLE; 2)

APPELLANT'S REMOVAL FROM HIS HOME AND

FAMILY PENDING TRIAL WITHOUT REGARD TO

HIS WIFE'S SERIOUS MEDICAL CONDITION; 3)

APPELLANT'S DENIAL OF ACCESS TO

WITNESSES WHICH COULD HAVE HELPED IN

HIS DEFENSE; 4) THE FACT THAT SEVERAL

WITNESSES DECLINED TO ASSIST APPELLANT

AFTER BEING INTERVIEWED BY

INVESTIGATORS, BECAUSE OF THEIR FEAR OF

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While we have carefully considered each assigned error, we

discuss only those which require specific comment or

clarification.

CAREER REPERCUSSIONS IF THEY TESTIFIED

ON APPELLANT'S BEHALF.

X. APPELLANT HAS BEEN SUBJECTED TO CRUEL

AND UNUSUAL PUNISHMENT IN VIOLATION OF

HIS EIGHTH AMENDMENT RIGHTS, WHERE THE

UNITED STATES DISCIPLINARY BARRACKS

WILLFULLY DISREGARDED ITS OWN

PROCEDURAL RULES AND ENGAGED IN

DELIBERATE DILATORY TACTICS BY REFUSING

APPELLANT'S REQUEST FOR EMERGENCY

LEAVE AND/OR EMERGENCY PAROLE IN

ORDER TO ASSIST HIS WIFE FOLLOWING

CANCER SURGERY.

XI. APPELLANT'S COURT-MARTIAL LACKED

JURISDICTION WHERE THE MILITARY JUDGE

AND STAFF JUDGE ADVOCATE WERE NOT

PROPERLY CERTIFIED; SPECIFICALLY,

NEITHER WAS AN ACTIVE MEMBER OF HIS

RESPECTIVE STATE BAR AT THE TIME OF

TRIAL.

XII. AN INQUIRY INTO APPELLANT'S MENTAL

CAPACITY AND MENTAL RESPONSIBILITY

SHOULD HAVE BEEN ORDERED, DUE TO

APPELLANT'S EXTREME DURESS BEFORE AND

DURING TRIAL.

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We conclude that the findings and sentence are

correct in law and fact and that no error materially prejudicial

to the substantial rights of the appellant was committed.

Arts. 59(a) and 66(c), UCMJ.

Statute of Limitations

The appellant's first assignment of error relates to the

Additional Charge and the sole specification thereunder

which alleges a violation of Article 120, UCMJ, the rape of

Aviation Electronics Technician Second Class W on or about

19 April 1990. The appellant's contention is that since this

offense was alleged to have occurred more than 5 years prior

to the preferral of the charge on 28 August 1996, and since

the offense was referred non-capital, that prosecution is

barred under the 5-year statute of limitations set forth in

Article 43, UCMJ. We disagree.

Our superior court recently decided the case of

Willenbring v. Neurauter, 48 M.J. 152 (1998). Therein, the

court undertook a thorough analysis of the very issue in this

case and held that if an offense is one "punishable by death"

it is exempt from the 5-year statute of limitations regardless

of whether it is referred capital or non-capital.’ Willenbring,

48 M.J. at 180. This court had earlier reached a similar

conclusion in United States v. Gonzales, 46 M.J. 667

(N.M.Ct.Crim.App. 1997), aff'd, No. 97-0755 (C.A.A.F. Jan.

15, 1999). Accordingly, we find no merit in this assignment

of error.

> The crime of rape, in violation of Art. 120, UCMJ, is

punishable by "death or such other punishment as a court-

martial may direct.". MANUAL FOR COURTS-MARTIAL,

UNITED STATES (1998 ed.), Part IV, ¢ 45e(1).

lla

Ineffective Assistance of Counsel

In his second assignment of error, the appellant

contends that he was denied effective assistance counsel

when his trial defense counsel failed to request supporting

documents for the DNA testing with reference to Additional

Charge I and its sole specification which alleges a violation

of Article 120, UCMJ, the rape of the appellant's daughter,

CG. This assignment of error is without merit.

The standard of review for a claim of ineffective

assistance of counsel, as applied to courts-martial, is found in

United States v. Scott, 24 M.J. 186 (C.M.A. 1987)citing

Strickland v. Washington, 466 U.S. 668 (1984)). The

competence of an accused's counsel is presumed. Scott, 24

M.J. at 188. To rebut this presumption, an accused must

satisfy a two-prong test by showing that (1) his counsel's

performance was deficient, and (2) the deficiency prejudiced

his defense. /d.

The appellant has failed to satisfy either prong of this

test. Pursuant to the terms of a pretrial agreement, the

appellant entered into a stipulation of fact wherein he admitted

the rape of CG and then entered an unconditional plea of

guilty to the charge and specification. Prosecution Exhibit 1 at

9-11; Record at 132-134, 136-139. We concur with the

military judge's finding that the plea was provident, and we

will not now engage in speculation regarding tactical decisions

made by the appellant and his trial defense counsel. We find

that trial defense counsel were not deficient in their

performance. Likewise, we find no prejudice to the appellant's

substantial nghts or any plausible reason for requiring the

production of the requested documents where the appellant

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stipulated to his guilt and pled providently to the offense in the

court below.

Telephonic Testimony During Sentencing

The appellant next asserts that it was plain error for

the military judge to permit CG to testify remotely over a

speaker telephone during sentencing. We find no merit in

this argument. RULE FOR COURTS-MARTIAL 1001(e)(1),

MANUAL FOR COURTS-MARTIAL, UNITED STATES (1998 ed.)

specifically states that "[d]uring the presentence proceedings,

there shall be much greater latitude than on the merits to

receive information by means other than testimony presented

through the personal appearance of witnesses." Thus, it was

clearly "a matter within the discretion of the military judge,"

to permit this victim to provide impact testimony either in

person or by other means. /d. Furthermore, the appellant

affirmatively consented to the taking of the testimony of CG

by telephone. Record at 189. Therefore, the appellant

forfeited this issue in the absence of plain error.

See United States v. Powell, 49 M.J. 460 (1998). We

conclude that there was no prejudice to the appellant's

substantial rights, and he, therefore, is entitled to no relief.

Art. 59(a), UCMJ.

- Ex Post Facto Violation

The appellant's contention that the changes to

Articles 57 and 58b, UCMJ, violate the ex post facto clause

of the Constitution is without merit. See United States v.

Carter, MJ. __, No. 97-1121 (C.A.A.F. Order Aug. 20,

1998).

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Due Process

The appellant's fifth assignment of error is moot.

Any possible prejudice was overcome upon the issuance of

the convening authority's Supplemental Court-Martial Order

No. 1-99, dated 11 January 1999, wherein adjudged and

automatic forfeitures of $500 pay per month were,

respectively, suspended and waived for a period of six

months.

Unreasonably Long Period of Suspension

We find no merit in the appellant's next assignment

of error. As we stated in United States v. Ratliff, 42 M.J.

797, 802 (N.M.Ct.Crim.App. 1995), "Placing an appellant on

probation for the entire period of his confinement is

reasonable as a control and motivating measure and is not

violative of public policy or of R.C.M. 1108(d)."

Recusal of Military Judge

The appellant contends in his seventh assignment of

error that the military judge should have recused himself

since he had previously served as commanding officer of

Naval Legal Service Office Southeast and had, in such

capacity, received evidence about the appellant's offenses.

R.C.M. 902 sets forth the grounds for disqualification of a

military judge. In the context of this case, the military judge

need only have recused himself if his impartiality might have

been reasonably questioned, R.C.M. 902(a), or if he had a

personal bias or prejudice. R.C.M. 902(b)(1)(emphasis

added). No evidence was adduced at trial, nor is any

presented on appeal, to demonstrate a personal interest in the

appellant's case or a basis for reasonably questioning the

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military judge's impartiality.

We further find that even if there were some remotely

possible basis for disqualification, the military judge's failure

to recuse himself was not plain error. We find no prejudice

to the appellant's substantial nights in the record before us.

Art. 59(a), UCMJ.

Unlawful Command Influence

In order to prevail on a claim of unlawful command

influence, the appellant must "(1) '‘allege[] sufficient facts

which, if true, constitute unlawful command influence’; (2)

show that the proceedings were unfair; and (3) show that the

unlawful command influence was the proximate cause of that

unfairness." United States v. Stombaugh, 40 M.J. 208, 213

(C.M.A. 1994) (quoting United States v. Levite, 25 M.J. 334,

341 (C.M.A. 1987)(Cox, J., concurring)).

Our superior Court has defined what it means, in an

appellate context, to "show" that the proceedings were unfair

because of unlawful command influence. United States v.

Reynolds, 40 M.J. 198, 202 (C.M.A. 1994). The Court also

noted that no prejudice is presumed unless the defense

presents evidence of proximate causation between the acts

constituting unlawful command influence and the outcome

of the court-martial. Reynolds, 40 M.J. at 202.

Although the threshold for raising the issue of

unlawful command influence at trial is low, the evidence

required must be more than mere allegation or speculation.

United States v. Johnston, 39 M.J. 242, 244 (C.M.A. 1994).

The evidentiary standard for raising the issue has been

determined to be the same as that required to raise-an issue of

15a

fact, i.e., "some evidence." United States v. Ayala, 43 M.J.

296, 300 (1995).

Here, we are presented with absolutely nothing more

than the appellant's self-serving affidavit. Nonetheless,

based on our careful review of the entire record, we find no

support for the appellant's claim. His allegations of unlawful

command influence are without merit.

Mental Capacity and/or Mental Responsibility

In his final assignment of error, the appellant alleges,

for the first time, that he suffered duress during the pendency

of the court-martial proceedings. He further asserts that, due

to the negative impact of such duress, an inquiry should have

been ordered into his mental capacity and/or mental

responsibility.

R.C.M. 706 sets forth the guidelines for inquiring

into the accused's mental capacity or mental responsibility.

At no time during the entire proceeding did the evidence

suggest that the appellant suffered from either a lack of

mental capacity or mental responsibility. On the contrary,

the appellant entered pleas of guilty and engaged in a lengthy

providence inquiry with the military judge who subsequently

determined those pleas to be freely and voluntarily made.

Record at 187. Even if we were to find some evidence of his

present claim, which we most assuredly do not, these matters

were waived by his unconditional guilty pleas. R.C.M.

905(e); R.C.M. 910(j); United States v. Boasmond, 48 M.J.

912, 916 (N.M.Ct.Crim.App. 1998)(citing United States v.

Lewis, 34 M.J. 745, 750 (N.M.C.M.R. 1991)). The

appellant's claim is without merit.

l6a

Conclusion

Accordingly, we affirm the findings of guilty and the

sentence, as approved below.