U.S. Air Force Master Sergeant Court-Martialed For Sexual Assault, Assault Consummated by Battery and Maltreatment: Charges Withdrawn and Dismissed.
A U.S. Air Force Master Sergeant, assigned to base Security Forces, was criminally charged in 2014 under the Uniform Code of Military Justice (UCMJ) with Sexual Assault, Assault Consummated by Battery and Maltreatment of two female subordinates. The charges arose from an incident that occurred four years earlier in 2010 in the civilian community after the parties attended a unit holiday party. Once the party ended, many of its attendees, Airmen within the unit, migrated from the party location to a series of bars in town and ultimately to a gentlemen’s club or strip club. The Master Sergeant and one of the two alleged female victims in this case were present at the strip club. They both traveled and arrived there separately with different groups of people from the unit. While at the strip club, it was alleged that the Master Sergeant (MSgt) ordered a female junior enlisted Airman out of her seat. This particular Airman was under the Master Sergeant’s supervision within the unit. As a result, she complied with his order. The Master Sergeant then occupied the seat, grabbed the Airman by the hips and pulled her down onto his lap. When the Airman sought to get up, the Master Sergeant grabbed her by the hand and pulled her back down into his lap. She struggled free and then took a seat nearby. The Master Sergeant was then accused of reaching across a third party sitting between him and the female in placing his hands in between her legs and touching her groin or vagina. The same night, the Master Sergeant was further alleged to have sent a series of text messages containing unwanted sexual innuendo and content to another junior enlisted female Airman who was also under his supervision.
The two female Airmen affected by the Master Sergeant’s actions reported him to their Squadron Commander the next day. The Commander initiated an investigation into the allegations. After gathering all of the available evidence related to the incidents, the Squadron Commander concluded that the Master Sergeant engaged in the alleged inappropriate behavior with respect to the female Airmen. The Commander then consulted with enlisted leadership, the Judge Advocate’s Office, a Sexual Assault Response Coordinator, and an Equal Opportunity Representative. Based on these consultations, the Squadron Commander imposed various forms of punishments against the Master Sergeant for his wrongful behavior. Punishments included issuing him a Letter of Reprimand (LOR), marking down his Enlisted Performance Report (EPR), opening an Unfavorable Information File (UIF), and removing him from the leadership role as Flight Chief. These forms of punishment were imposed by the Squadron Commander against the Master Sergeant with the consent and approval of the female victims. This temporarily put an end to the incident.
In 2014, nearly four years later, the U.S. Force decided to reopen its investigation of the Master Sergeant for the above-referenced misconduct. Apparently, one of the then-junior female Airman was separating from service or leaving the Air Force. On her way out, potentially disgruntled by her inability to make promotion and be retained for further service and angry that the Master Sergeant remained in service, again in a Flight Chief or leadership position, reported the incident to the Air Force law enforcement agency, Office of Special Investigations (OSI). Because the female alleged, among other things, that she had been sexually assaulted by the Master Sergeant, OSI initiated its own independent investigation of the matter. This investigation involved interviewing an extensive number of actual and potential witnesses that included the party attendees from 2010 as well as those who migrated to the strip club. OSI even visited the strip club and photographed the location. Based on its overall investigation, which lasted for several months, a new Commander who now had authority over the Master Sergeant opted to pursue criminal prosecution. The former Squadron Commander who investigated and disposed of this matter had changed duty stations and was no longer in the continental United States. As a result, the Master Sergeant was charged under the Uniform Code of Military Justice as follows: one charge and two specifications of Maltreatment in violation of Article 93, UCMJ, one count for each junior Airman: the one at the club and the other to whom he sent the text messages. He was also charged with one charge and one specification of Sexual Assault in violation of Article 120, UCMJ and one charge and one specification of Assault Consummated by Battery in violation of Article 128, UCMJ, both related to his actions in the strip club. All charges and specifications were then referred for trial by Special Court-Martial Empowered to Adjudge a Bad Conduct Discharge.
The Master Sergeant, at the time he was charged, was only months away from becoming eligible for his 20-year military retirement. Faced with the possibility of losing this important benefit and the many other benefits available to veterans, as well as potential jail, forfeitures of pay and allowances, reduction in rank, punitive discharge and a sex offender registration requirement, the Master Sergeant could not take any chances with his and his family’s future. This caused him to retain Attorney John L. Calcagni III to defend his life and future in this important matter.
After being retained, Attorney Calcagni went straight to work to conduct his own pretrial investigation of this matter. The Master Sergeant was stationed in Florida and the Law Office of John L. Calcagni III, Inc. is in Rhode Island. Attorney Calcagni’s first priority was ensuring that one of the Air Force’s finest military defense attorneys be assigned or appointed to this matter to assist him as local counsel on the ground. Captain Ryan Turner received this assignment. He and Attorney Calcagni began plotting and strategizing immediately to form and shape a defense-oriented pretrial investigation. OSI has already interviewed a number of witnesses and documented their recollections with statements. Because so much time has passed since the events of December 2010, Attorney Calcagni thought it to be most prudent to start from the beginning with his own investigation. He traveled to Florida and with Capt Turner’s assistance, began interviewing as many local witnesses as possible. For those who were afar, he interviewed them telephonically to include the Master Sergeant’s former Squadron Commander who is now stationed in Hawaii. These interviews made it clear to the attorneys that nothing had changed in the past four years with respect to the evidence. The facts and circumstances of what witnesses reported in December 2010 regarding the Master Sergeant’s misconduct was relatively the same as they recalled in 2014. Things that did change included the assault victim separating from service and moving away from Florida and the maltreatment victim not wanting to participate in the prosecution. Attorney Calcagni also learned of the former Squadron Commander’s surprise and disappointment that a new person in a position of command authority would seek to usurp or undermine the informed decisions of authority that he made several years ago. The other main change that had occurred in the past four years was the media coverage of, political pressure on and policy in the armed forces regarding the investigation and prosecution of sexual assault cases.
Based on what was learned from the defense oriented-investigation investigation, the two victims had little to no interest in cooperating with the prosecution. The Defense further learned that the Master Sergeant’s present Commander did not support his prosecution and in fact, refused to press or prefer criminal charges. This collective information, along with the change in military culture regarding sex assault prosecution, led Attorney Calcagni and the Defense team to seek dismissal of the case on the basis of what is known in the military as unlawful command influence (UCI). This exists where either a Commander’s independent discretion to dispose of misconduct is actually interfered with by outside influences or where due to external forces and circumstances, there exists an appearance of impropriety or interference with the Commander’s prosecutorial discretion. Pursuing a motion of this type would have put the Air Force military justice system on trial in this instance and required a number of individual commanders at various levels in the chain to testify. The Defense placed the government on direct notice of this strategy and that a UCI motion was going to be filed and needed to be litigated.
One week before trial, the Defense and government struck a deal. Attorney Calcagni and the Defense team successfully persuaded the government to withdraw and dismiss the criminal charges against the Master Sergeant, which had been referred for trial by Special Court-Martial empowered to adjudge a Bad Conduct Discharge. The agreement further called for the Master Sergeant’s acceptance of responsibility to Assault Consummated by Battery and Maltreatment at a Summary Court-Martial, a less serious and punitive proceeding. The previously charged Sexual Assault charge was completely dismissed. The deal also contained a provision that allowed the Master Sergeant to avoid administrative separation and to retire as planned upon his completion of 20 years of military service. The only potential penalties the Master Sergeant faced at a Summary Court-Martial was a reduction in rank, 2/3 forfeiture of pay and allowances for one month and a written reprimand. As far as the Defense was concerned, the mere execution of this deal was already a victory as the Master Sergeant no longer risked a criminal conviction, jail time, a punitive discharge, loss of his retirement, or the possibility of a sex offender registration requirement. The Master Sergeant acquiesced to this deal that his lawyers negotiated on his behalf.
On the day of trial by Summary Court-Martial, the Master Sergeant pleaded guilty as planned to two counts of Assault Consummated by Battery and two counts of Maltreatment – one set of charges for each victim. The Summary Court-Martial Officer accepted the guilty pleas and adjudged him guilty. Next, the parties proceeded with sentencing. The government strongly advocated for maximum punishment: reduction in rank, forfeiture and a reprimand. The prosecutor urged the Summary Court-Martial Officer to conclude that the Master Sergeant’s admitted misconduct fell significantly below the standards required for someone of his rank; that he had not been punished adequately in December 2010; and that harsh punishment was warranted today. In support of these requests, the prosecutor cited multiple (i.e. two) victims; the disparity in rank between them and the Master Sergeant; and that the Accused has deliberately targeted and planned to victimize his subordinates.
Attorney Calcagni responded on behalf of the Defense seeking no punishment of the Accused. He focused his argument on the prior punishment the Master Sergeant had previously received: letter of reprimand, marked down Enlisted Performance Report, opening of an Unfavorable Information File and removal from the leadership position of flight chief. Attorney Calcagni reminded the Summary Court-Martial Officer that the military justice system is owned and administered by Commanders, not lawyers, and that the Commanders who had previously investigated this case, adjudicated it in the forms of the aforementioned punishment. He argued that it would be an injustice, four years after the fact, to allow the government to now take a second bite at the apple by further punishing the Master Sergeant for what he accepted both responsibility and punishment for long ago. Attorney Calcagni reminded the Officer, who was also a Squadron Commander, that he would not appreciate it if years down the road another Commander, who knew nothing about him, his prior investigation or a service member under this charge, usurped or undermined his prior authority by bringing an old, disposed of case back to life in order to impose additional punishment against a previously punished offender. Attorney Calcagni also cited the lack of victim presence, participation or impact in the prosecution. He also emphasized how the Master Sergeant’s misconduct was influences by alcohol and intoxication and that since the event his client had successfully attended and completed counseling, risen back through the ranks to become a Flight Chief again, and otherwise had an unblemished service record. He challenged the government prosecutor in open Court, who remained silent, to offer the Court an explanation as to why the Master Sergeant was being held accountable twice for the same misconduct. Attorney Calcagni emphasized that the mere existence of this Summary Court-Martial was an injustice to the Master Sergeant and a challenge to the overall integrity of the military justice system. He asked the Summary Court-Martial Officer to restore the integrity to this system by imposing no additional punishment to the previously punished Master Sergeant and fully restoring him to duty. After hours of deliberations, the Summary Court-Martial Officer delivered his verdict consistent with the recommendation and request of Attorney Calcagni: no punishment.