U.S. v. Gogas, 58 M.J. 96

Trial Stages: Sentence and Punishment: Evidence

1. the fact that evidence may be inadmissible under one rule does not preclude its admissibility under a different rule
2. R.C.M. 1001(b)(4) permits the Government to introduce evidence of any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty; aggravation evidence may include evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused’s offense; aggravating evidence includes evidence which is directly related to the offense for which an accused is to be sentenced so that the circumstances surrounding that offense or its repercussions may be understood by the sentencing authority; counsel may present such evidence through a stipulation of fact, witness testimony, or the accused's own statements
3. appellant’s letter to his Congressman was a statement by the accused directly relating to the offenses of which he was found guilty and admissible under R.C.M. 1001(b)(4); the letter revealed an aggravating circumstance: appellant’s indifference to anything other than his own pleasure; indifference to the nature or consequences of criminal conduct is an aggravating factor that may be considered in determining an appropriate sentence for that misconduct

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. Title 10 U.S.C. § 1034(a)(1) provides that no person may restrict a member of the armed forces in communicating with a Member of Congress; the statute further dictates that no person may take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal against a member of the armed forces for making or preparing a communication to a Member of Congress
2. the purpose of 10 U.S.C. § 1034(b)(1)(A) is to let every man in the armed services have the privilege of writing his Congressman or Senator on any subject if it does not violate the law or if it does not deal with some secret matter
3. to violate 10 U.S.C. § 1034, a person must initiate a negative personnel action specifically in retaliation for a servicemember’s communication with a Member of Congress
4. there may be circumstances where the use of a congressional communication in the context of a court-martial proceeding would constitute a prohibited retaliation under 10 U.S.C. § 1034
5. the remedial provisions of 10 U.S.C. § 1034 are limited to retaliatory actions, and the Court declines to extend the statute to establish a broad privilege or public policy prohibition against use in a court-martial of communications by servicemembers to Members of Congress, even in the absence of retaliation