The Court of Appeals for the Armed Forces recently issued an opinion in United States v. Swisher. Lance Corporal Swisher was court-martialed for several offenses resulting from the sexual assault of a young woman. Both LCpl Swisher and a civilian male were alleged to have assaulted the victim together. The civilian defendant pled guilty to criminal sexual conduct in the third degree in South Carolina state court. He was sentenced to a five-year prison term, which was suspended, and three years of probation. LCpl Swisher contested his charges at court-martial and was found guilty of attempted sexual assault, wrongful use of cocaine, and two specifications of sexual assault. He was sentenced to fifty-four months confinement, a dishonorable discharge, and reduction to E-1.
On appeal, the defense argued that the attempted sexual assault conviction was legally flawed. The defense also argued that LCpl Swisher’s sentence was inappropriate for his offenses, particularly in light of the comparatively light sentence his co-actor received in state court. The Navy-Marine Corps Court of Criminal Appeals agreed with the defense in regards to the attempted sexual assault conviction and set it aside. However, the Court affirmed the sentence that LCpl Swisher had received at trial, declining to compare his sentence to the civilian’s because he had been convicted of a different charge and in state court.
LCpl Swisher appealed this decision to the Court of Appeals for the Armed Forces, and argued that the lower court’s refusal to compare his sentence with his co-actor’s was error. The service-level appellate courts are given broad latitude under Article 66 of the UCMJ to determine whether a sentence is appropriate to an individual accused. Generally, the courts may engage in comparison of sentences for similar offenses, but are not required to do so. The one exception to this rule is a requirement that appellate courts compare sentences when the appropriateness of a sentence can only be fairly determined by referencing sentences in “closely related” cases. One example of cases that can be considered “closely related” is when the two cases involve co-actors in a common crime. An appellant has the burden of showing that the cases are “closely related” and that the sentences are “highly disparate.” When the appellant has met this burden, the Government must then show that there is a rational basis for the disparity in sentences.
The Court of Appeals for the Armed Forces determined that the Navy-Marine Corps Court erred when it did not even analyze whether or not LCpl Swisher had met his burden to show that his case was closely related to the civilian’s. It found that civilian sentences can be used for comparison, so the lower court’s decision not to evaluate whether the cases were closely related was incorrect. The Court sent the case back to the Navy-Marine Corps Court for it to complete the required analysis and determine first whether LCpl Swisher’s case is closely related to his co-actor’s and, if so, then whether the Government can provide a rational basis for the different sentences.
If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.