UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.A. FISCHER, D.C. KING, T.P. BELSKY

Appellate Military Judges

UNITED STATES OF AMERICA

v.

EDMUND R. GALLEGOS 

GUNNERY SERGEANT (E-7), U.S. MARINE CORPS

NMCCA 201300391

GENERAL COURT-MARTIAL

Sentence Adjudged: 29 May 2013.

Military Judge: LtCol Nicole Hudspeth, USMC.

Convening Authority: Commander, United States Marine Corps 

Forces Command, Norfolk, VA.

Staff Judge Advocate's Recommendation: LtCol D.J. Bligh, 

USMC.

For Appellant: LT Jonathan Hawkins, JAGC, USN; LT David 

Dziengowski, JAGC, USN.

For Appellee: Maj Crista D. Kraics, USMC.

23 December 2014

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

BELSKY, Judge:

A military judge, sitting as a general court-martial, 

convicted the appellant pursuant to his pleas of two 

specifications of conspiracy, one specification of wrongfully 

selling government property, one specification of wrongfully 

possessing machineguns, and one specification of wrongfully 

transporting machineguns through interstate or foreign commerce, 

in violation of Articles 81, 108, and 134, Uniform of Military 
2

Justice, 10 U.S.C. §§ 881, 908, and 934. The adjudged sentence 

included three years’ confinement, reduction to pay grade E-1, a 

dishonorable discharge, and a $10,000.00 fine, with an 

additional twelve months’ confinement if the fine was not paid 

by 17 April 2014. The convening authority (CA) approved the 

sentence as adjudged and, pursuant to the terms of a pretrial 

agreement, suspended for a period of twelve months all 

confinement in excess of eighteen months.

On appeal, the appellant raises the following assignments 

of error:

WHETHER APPELLANT’S SENTENCE IS DISPARATELY SEVERE 

COMPARED TO THE CLOSELY-RELATED CASES OF GYSGT 

CARSTENSEN, GYSGT LEONARD, 1STLT WARP, CAPT PUMP AND 

CAPT BROWN? 

WHETHER THE MILITARY JUDGE ERRED WHEN SHE DENIED 

APPELLANT’S MOTION TO DISMISS PURSUANT TO ARTICLE 10, 

UCMJ?1

Finding merit in his first assignment of error we will 

grant relief in our decretal paragraph. Following our 

corrective action, no error materially prejudicial to a 

substantial right of the appellant remains. Arts. 59(a) and 

66(c), UCMJ. 

Background

The following facts are taken from the appellant's 

providence inquiry, and in the stipulation of fact entered into 

evidence as Prosecution Exhibit 1. 

While deployed to Iraq, the appellant and Gunnery Sergeant 

(GySgt) Daniel Leonard, USMC, became acquaintances. During the 

course of that relationship, GySgt Leonard invited the appellant 

to join a scheme to obtain excess military property and 

illegally sell it for a profit through Internet sites such as 

eBay. The appellant agreed to join GySgt Leonard. 

Through his assigned duties, GySgt Leonard continued to 

surreptitiously obtain military property, and gave a portion of 

the property to the appellant to sell. GySgt Leonard and the 

appellant also provided some of the property to Captain (Capt) 

 

1 Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 

1992).
3

Christopher Brown, USMC, and Capt Donald Pump, USMC, for them to 

sell as well. In total, GySgt Leonard made approximately 

$85,000.00 from this scheme, the appellant made approximately 

$39,000.00, and Capt Brown profited approximately $30,000.00. 

Capt Pump actually sold little, if any, of the items, and 

investigators were able to retrieve much of the property given 

to him. However, Capt Pump played a pivotal role in the scheme 

by taking advantage of his position to enable acquisition of the 

excess military property.

In addition to wrongfully obtaining and selling military 

property, GySgt Leonard also solicited the appellant to help him 

secretly ship from Iraq to the United States 22 illegally 

obtained AK-47 machineguns. GySgt Leonard informed the 

appellant that he and a fellow Marine, GySgt Steven Carstensen, 

USMC, intended to ship the weapons to the U.S., and the 

appellant agreed to use his position as logistics chief to 

facilitate the shipments. The appellant’s conduct in this 

scheme included ensuring that the weapons, hidden in shipping 

containers with false bottoms, were not discovered during 

customs inspections. Once the weapons were in the U.S., the 

appellant, at GySgt Leonard’s request, delivered one weapon each 

to Capt Brown and First Lieutenant (1st Lt) Christopher Warp.

Based on this conduct, the CA referred charges against all 

the Marines involved, with the exception of GySgt Leonard, who 

was administratively separated with an other than honorable

conditions discharge and faced possible prosecution in civilian 

federal court. However, the record of trial does not indicate 

whether civilian authorities ever actually prosecuted GySgt 

Leonard. 

Capt Brown pled guilty at a general court martial to one 

specification of wrongfully selling military property, one 

specification of wrongfully possessing a machinegun, one 

specification of obstructing justice, and one specification of 

receiving stolen property. His adjudged sentence included a 

dismissal, confinement for twelve months, a $15,000.00 fine, and 

forfeiture of $1,000.00 pay per month for twelve months. The CA

was obligated pursuant to a pretrial agreement to defer the 

adjudged and automatic forfeitures, and suspend the amount of 

the fine in excess of $10,000. 

GySgt Carstensen pled guilty at a general court martial to 

one specification of conspiracy, one specification of wrongfully 

possessing machineguns, one specification of wrongfully 

transporting machineguns, two specifications of larceny, and 
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one specification of receiving stolen property. His adjudged 

sentence included a bad-conduct discharge, confinement for nine 

months, and a reduction to pay grade E-1. 

1st Lt Warp pled guilty at a general court martial to three 

specifications of violating Article 134, UCMJ. His adjudged 

sentence included a dismissal, confinement for seventy days, and 

forfeiture of $1,000.00 pay per month for twelve months. The CA

was obligated pursuant to a pretrial agreement to disapprove the 

adjudged forfeitures, and defer and waive the automatic 

forfeitures.

Finally, Capt Pump pled guilty at a general court martial 

to one specification of dereliction of duty, and one 

specification of receiving stolen property. His adjudged 

sentence included a dismissal, confinement for eighteen months, 

a $10,000.00 fine, and forfeiture of $2,500.00 pay per month for 

eighteen months. The CA was obligated pursuant to a pretrial 

agreement to suspend the fine, defer and then waive and defer 

the automatic and adjudged forfeitures respectively, and suspend 

all confinement in excess of 180 days.

Sentence Disparity

In his first assignment of error, the appellant alleges 

that his sentence is disproportionately severe compared to the 

sentences of his fellow Marines involved in the conduct in 

question. He avers that disapproving the dishonorable discharge 

will remedy this error.

In general, we review the appropriateness of a sentence 

without reference or comparison to sentences in other cases. 

United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985). We 

will not engage in comparison of specific cases “‘except in 

those rare instances in which sentence appropriateness can be 

fairly determined only by reference to disparate sentences 

adjudged in closely related cases.’” United States v. Lacy,

50 M.J. 286, 288 (C.A.A.F. 1999) (quoting Ballard, 20 M.J. at 

283) (additional citation omitted). “Closely related” cases are 

those that involve offenses “similar in both nature and 

seriousness or which arise from a common scheme or design.” 

United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R. 1994); see 

also Lacy, 50 M.J. at 288 (examples of closely related cases 

include co-actors in a common crime, servicemembers involved in 

a common or parallel scheme, or “some other direct nexus between 

the servicemembers whose sentences are sought to be compared”). 

The burden is upon the appellant to make the initial showing 
5

that his case is closely related to another, and that the 

sentences are highly disparate. Lacy, 50 M.J. at 288. If the 

appellant meets this burden, the Government must then establish 

a rational basis for the disparity. Id. 

In conducting this analysis it is important to note that 

“[s]entence comparison does not require sentence equation.” 

United States v. Durant, 55 M.J. 258, 260 (C.A.A.F. 2001)

(citations omitted). Additionally, co-conspirators are not 

entitled to equal sentences simply due to their status as coconspirators. See id. at 261. Sentence disparity exists when a 

sentence exceeds “relative uniformity” or represents an “obvious 

miscarriage of justice or an abuse of discretion.” United 

States v. Swan, 43 M.J. 788, 793-94 (N.M.Ct.Crim.App. 1995)

(citations and internal quotation marks omitted). It is with 

these concepts in mind that we review the appellant's sentence. 

In its answer, the Government concedes that the appellant's 

case is closely related to those of his fellow Marines. 

However, the Government alleges that the appellant is not 

entitled to relief since he has failed to demonstrate that the 

sentences in question are highly disparate. We disagree. 

Of all the Marines involved, the appellant's adjudged 

confinement was the longest by two years, and he was the only 

Marine to suffer both an approved fine and unsuspended automatic 

forfeitures. Moreover, the appellant was the only enlisted 

Marine involved in the misconduct to receive a dishonorable 

discharge. In light of these facts, and given that the cases 

are closely related, we find that the appellant's sentence is 

highly disparate to the sentences of his fellow Marines. 

Although we find the appellant's sentence highly disparate 

we will not grant relief so long as the Government provides a 

rational basis for the disparity. In its brief, the Government 

asks that we find a rational basis for the disparity based on a 

“presumption” that the military judge in each case carefully 

weighed all the evidence in mitigation, extenuation and 

aggravation and rendered an individualized and appropriate 

sentence. Government's Brief of 13 May 2014 at 12. We cannot 

apply such a presumption as doing so would improperly relieve 

the Government of its burden. See Lacy, 50 M.J. at 288 (stating 

that if the appellant meets his burden of showing a high 

disparity among closely related cases, or if the court raises 

the issue on its own motion, “then the Government must show that 

there is a rational basis for the disparity”). Additionally, 
6

our review of the record as a whole, including the Government's 

brief, does not reveal a rational basis for the disparity.

The record of trial demonstrates that the appellant, while 

playing a significant role in both plans to sell military 

property and to transport the machineguns, was the most junior 

Marine involved in the misconduct, and did not become involved 

in either scheme, until solicited by two senior Marines while 

all were forward deployed to Iraq. Equally concerning is the 

record’s silence on why GySgt Leonard – the recognized 

ringleader of both schemes - avoided military justice 

altogether. Based on all these facts, we conclude that the 

Government has failed to meet its burden of providing a rational 

basis for the appellant's highly disparate sentence. 

Accordingly, we will grant relief.

 

Article 10, UCMJ

In a Grostefon submission, the appellant claims that the 

military judge erred in denying his motion to dismiss based on 

an alleged violation of Article 10, UCMJ. We disagree. We 

review de novo whether an appellant was denied his right to a 

speedy trial under Article 10, UCMJ. United States v. Cooper, 

58 M.J. 54, 58 (C.A.A.F. 2003).

Article 10, UCMJ, states that when a servicemember, 

[I]s placed in arrest or confinement prior to trial, 

immediate steps shall be taken to inform him of the 

specific wrong of which he is accused and to try him 

or to dismiss the charges and release him.

The Court of Appeals for the Armed Forces has explained that 

this provision “is specifically addressed to a particular harm, 

namely causing an accused to languish in confinement or arrest 

without knowing the charges against him and without bail.” 

United States v. Schuber, 70 M.J. 181, 187 (C.A.A.F. 2011)

(citation omitted). “[I]f the condition precedent is addressed 

— the accused is no longer confined without knowing the charges 

of which he is accused and without opportunity for bail — the 

purpose of Article 10, UCMJ, is vindicated.” Id. This remains 

true even if the appellant is placed on restriction after 

release from confinement, so long as that restriction is not 

tantamount to arrest or confinement. Id. 

In the present case, the appellant was placed in pretrial 

confinement on 14 April 2011. However, he was released from 

confinement nineteen days later, on 3 May 2011, and placed on 
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pretrial restriction where he remained until his court-martial 

held 17 May 2013. Although the appellant argued to the military 

judge that this period of restriction was tantamount to arrest 

or confinement, our review of the record convinces us that the 

military judge did not err in rejecting this argument. Thus, 

the purpose of Article 10, UCMJ, was “vindicated” in the 

appellant's case upon his release from confinement. Id.2 

Accordingly, this assignment of error is without merit.

Conclusion

The findings are affirmed. However, we affirm only so much 

of the sentence so as to include a bad- conduct discharge, 

confinement for eighteen months, a $10,000.00 fine, and 

reduction to pay grade E-1.3 The supplemental court-martial 

order will reflect that Capt Brown’s adjudged sentence included 

a fine of $15,000.00 vice $5,000.00.

Senior Judge FISCHER and Judge KING concur.

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court

 

 

2 We also find that the nineteen days that the appellant did spend in 

pretrial confinement did not violate Article 10, UCMJ, as we do not 

find this delay unreasonable. See Schuber, 70 M.J. at 187-88.

3 The staff judge advocate's recommendation demonstrates that the 

appellant paid his fine in full by 6 June 2013.