This opinion is subject to administrative correction before final disposition.




                                Before
                    KING, STEPHENS, and GASTON
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                       Jesse E. TORRES
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant

                             No. 201800335

                         Decided: 31 August 2020

    Appeal from the United States Navy-Marine Corps Trial Judiciary
                         upon reconsideration

                              Military Judge:
                             Keith A. Parrella

 Sentence adjudged 21 August 2018, by a special court-martial con-
 vened at Marine Corps Base Camp Lejeune, North Carolina, consist-
 ing of military judge alone. Sentence approved by the convening
 authority: reduction to E-1, confinement for five months, and a bad-
 conduct discharge.

                          For Appellant:
        Lieutenant Commander Jacqueline Leonard, JAGC, USN

                              For Appellee:
                       Major Kelli O’Neil, USMC
                    Captain William Mossor, USMC
         Lieutenant Jennifer Joseph, JAGC, USN (specified brief)
         Lieutenant Joshua Fiveson, JAGC, USN (specified brief)
               United States v. Torres, NMCCA No. 201800335
                Opinion of the Court (Upon Reconsideration)

                          _________________________

         This opinion does not serve as binding precedent, but
              may be cited as persuasive authority under
               NMCCA Rule of Appellate Procedure 30.2.

                          _________________________

PER CURIAM:
    Consistent with his pleas, Appellant was convicted of one specification of
dereliction of duty; two specifications of wrongful sale of military property;
and two specifications of larceny of military property, in violation of Articles
92, 108, and 121 of the Uniform Code of Military Justice [UCMJ], 10 U.S.C.
§§ 892, 908, 921 (2012) and sentenced by the military judge to reduction to
E-1, confinement for five months, and a bad-conduct discharge. Appellant
now claims that the portion of the sentence extending to a bad-conduct
discharge is inappropriate.


                              I. BACKGROUND

    Appellant and three other Marines, all of whom worked in a supply ware-
house at 3d Marine Raider Battalion, pleaded guilty in accordance with their
pretrial agreements to charges involving stealing military property from that
warehouse and selling it to a local pawnshop. Appellant’s crimes consisted of
stealing military equipment including multi-tools, knives, lights, and GPS
wristwatches on divers occasions and selling that material to a local pawn-
shop. In exchange, Appellant admitted to receiving approximately $1,050.00.
   He also admitted to helping his cohorts load additional military proper-
ty—scores of rifle buttstocks and buttstock subassembly parts valued at
$27,566.40—into a personally owned vehicle so that those cohorts could sell
that property to the pawnshop. For this action, he pleaded guilty as an aider
and abettor under Article 77, UCMJ, to stealing military property valued at
greater than $500 and to wrongfully selling that same property. Finally,
admitting that he was aware that his cohorts had stolen other military
property from the warehouse, Appellant admitted to being derelict in the
performance of his duties for not reporting those thefts.
   At sentencing, the Government presented portions of Appellant’s military
personnel file, reports of the investigation into his misconduct, evidence




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                  United States v. Torres, NMCCA No. 201800335
                   Opinion of the Court (Upon Reconsideration)

indicating the cost of the stolen military property, and the testimony of the
Battalion Supply Officer, Major [Maj] November,1 who testified about the
operation of the warehouse, the procedures for processing gear to the Defense
Reutilization and Marketing Office [DRMO], and the impact of Appellant’s
crimes on the unit. During cross-examination, trial defense counsel [TDC]
asked Maj November if he permitted Marines to take military packs that
were to be “disposed of” for their personal use. He said he did not. Defense
counsel next asked Maj November if he permitted Appellant’s cohorts to
“change into civilian attire” and throw equipment scheduled for DRMO into
“dumpsters out in the beach.” Again, Maj November responded that he did
not. On redirect, the Government asked Maj November whether he had “ever
given [Appellant] or any Marine permission to take, for their own personal
use, military property;” and whether Maj November had “ever told them to
get rid of military property outside of the normal DRMO channels.” He
replied “no” to both questions. During Maj November’s testimony, TDC made
only one objection—on grounds of improper aggravation, speculation and
foundation—which was sustained on foundational grounds.
    However, at a later sentencing proceeding for one of Appellant’s cohorts,
Appellant claims Maj November agreed that he instructed Marines to throw
unserviceable military property (e.g., “destroyed gym equipment” and
“destroyed . . . nonmilitary clothing”) in the trash since he was aware that
such property “wouldn’t be accepted by DRMO.” In light of this later
testimony, Appellant now argues that Maj November provided “false [and]
misleading” answers at Appellant’s trial such that this Court should “dismiss
his testimony.” And because Maj November was the primary source of
aggravation evidence, the lack thereof should cause this court to doubt the
appropriateness of a bad-conduct discharge.2
    On appeal, this Court granted Appellant’s motion to attach the transcript
from Major November’s testimony at the cohort’s sentencing proceeding. We
then resolved the matter against Appellant and issued an opinion on 13 April
2020 affirming the findings and sentence. However, later the same day, we
withdrew that opinion and ordered the parties to submit briefs on whether
the Court properly considered Maj November’s testimony at that separate
sentencing hearing, in light of the recent opinion by the United States Court
of Appeals for the Armed Forces [CAAF] in United States v. Jessie, 

  We have used a pseudonym for the witness’ last name.
   2   See generally, R. at 52-53.




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               United States v. Torres, NMCCA No. 201800335
                Opinion of the Court (Upon Reconsideration)

437 (C.A.A.F. 2020). Having considered those briefs, the initial briefs, and the
record of trial, we again affirm the findings and sentence.

                               II. DISCUSSION

    Sentencing authorities are free to impose any sentence they consider fair
and just within the limits set by the Code or the President. United States v.
Dedert, 

, 909 (N-M. Ct. Crim. App 2001) (citing United States v.
Turner, 

, 217 (C.M.A. 1964)). However, we may “affirm only
such findings of guilty and the sentence or such part or amount of the
sentence, as the Court finds correct in law and fact and determines, on the
basis of the entire record, should be approved.” UCMJ art. 66(c). This
responsibility is “a sweeping Congressional mandate to ensure a fair and just
punishment for every accused.” United States v. Baier, 

, 384
(C.A.A.F. 2005) (citation and internal quotation marks omitted). We review
the appropriateness of a sentence de novo.

the judicial function of assuring that justice is done and that the
accused gets the punishment he deserves.” United States v. Healy, 

, 395 (C.M.A. 1988). This requires this Court to give “individualized
consideration of the particular accused on the basis of the nature and
seriousness of the offense and character of the offender.” United States v.
Snelling, 

, 268 (C.M.A. 1982) (quoting United States v. Mamaluy,

, 180-81 (C.M.A. 1959)).
    Appellant’s argument that his bad-conduct discharge is inappropriate is
founded upon his confidence that Maj November provided false testimony at
his sentencing hearing. This confidence, in turn, is founded upon Appellant’s
interpretation of Maj November’s testimony at Appellant’s cohort’s sentenc-
ing hearing.
    In Jessie, the CAAF interpreted Article 66(c), UCMJ, and the statutory
requirement for this Court to make legal and factual determinations “on the
basis of the entire record.” The court held that, as a general rule, military
courts of criminal appeals may not consider evidence submitted for the first
time on appeal because they are “outside the ‘entire record.’ 

(quoting UCMJ art. 66(c)). The CAAF noted some exceptions to this general
rule, including “when doing so is necessary for resolving issues raised by
materials in the record.”

now claims that this evidence
is properly considered under this exception since Maj November’s testimony
at his trial “failed the M.R.E. 403 balancing test because it was more




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                      United States v. Torres, NMCCA No. 201800335
                       Opinion of the Court (Upon Reconsideration)

prejudicial than probative with regard to the evidence he offered in aggrava-
tion.”3 The Government counters that “Appellant’s case does not involve an
issue raised by but not fully resolvable on the Record alone,” rendering this
Court’s consideration of the attachment inappropriate under Jessie.4
    Assuming without deciding that we may properly consider the attach-
ment, we are not persuaded that Maj November’s answers at Appellant’s
trial, which were not objected to by Appellant’s TDC, were either erroneously
admitted or in any way inconsistent with his testimony in the cohort’s trial
and certainly not “false [and] misleading.”5 As Maj November explained when
he responded that he had never told Marines to “get rid of military property
outside of the normal DRMO channels,”6 he was not then referring to the
“garbage” mentioned later in another trial, but to “serviceable” military
property.7 Appellant’s conflation of these two scenarios is misplaced.
   Nor are we particularly sympathetic to Appellant’s argument on appeal
that “it is mitigating that the example set by the Supply Officer indicated
that DRMO gear was not deserving of significant accountability or control.”8



3   Appellant’s Br. on Specified Issue at 13.
4   Gov’t Br. on Specified Issue at 9.
5   Appellant’s Br. of 14 March 2019 at 

.
7               TC: Now, I want to talk about the context. So defense had asked
                    you about your statement, you know, “Get rid of this gear,”
                    and that was specifically as to get rid of this garbage, this
                    unserviceable equipment?
           WIT: Absolute. [sic]. Yeah, that's what I was talking about.
                TC: In another situations where maybe NCIS or maybe I asked
                    you, it was with respect to, “Did you ever say [that] as to
                    the items that were stolen [by] the accused?”
           WIT: That’s how I understood it.
                TC: So to be clear, you never told him to get rid of brand-new
                    Leatherman’s?
           WIT: Nope. . . .
                TC: All right. Thank you, sir.
Appellant’s Mot. to Attach, app. 1 (Transcript of Record at 110-11, United States v.
Delnevo, Marine Corps Base Camp Lejeune, North Carolina (Oct. 10, 2018)).
8   Appellant’s Br. of 14 March 2019 at 12.




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               United States v. Torres, NMCCA No. 201800335
                Opinion of the Court (Upon Reconsideration)

Even assuming lackadaisical management, Appellant admitted he was with-
out justification or excuse when he abused his position of trust to profit from
repeatedly stealing tens of thousands of dollars’ worth of military property
from the warehouse to which he was assigned, and stood silently by while
others did the same. His serious crimes merited the balanced punishment he
received.

                             III. CONCLUSION

    After reviewing the entire record and the pleadings by both parties, we
determine that the approved findings and the sentence are correct in law and
fact and no error materially prejudicial to the substantial rights of Appellant
occurred. UCMJ arts. 59(a), 66(c). We also find that the sentence is appropri-
ate for this offender and his offenses. Accordingly, the findings and sentence
as approved by the convening authority are AFFIRMED.


                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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