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 convened at Marine Corps Base Camp Lejeune, North Carolina, consisting of military judge alone. Sentence approved by the convening 

authority: reduction to E-1, confinement for five months, and a badconduct 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)

2

_________________________

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 warehouse 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 pawnshop. In exchange, Appellant admitted to receiving approximately $1,050.00.

He also admitted to helping his cohorts load additional military property—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 
United States v. Torres, NMCCA No. 201800335

Opinion of the Court (Upon Reconsideration)

3

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, 79 M.J. 

1 We have used a pseudonym for the witness’ last name.

2 See generally, R. at 52-53. 
United States v. Torres, NMCCA No. 201800335

Opinion of the Court (Upon Reconsideration)

4

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, 54 M.J. 904, 909 (N-M. Ct. Crim. App 2001) (citing United States v. 

Turner, 34 C.M.R. 215, 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, 60 M.J. 382, 384 

(C.A.A.F. 2005) (citation and internal quotation marks omitted). We review 

the appropriateness of a sentence de novo. Id. “Sentence appropriateness 

involves the judicial function of assuring that justice is done and that the 

accused gets the punishment he deserves.” United States v. Healy, 26 M.J. 

394, 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, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy, 

27 C.M.R. 176, 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 sentencing 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.’ ” 79 M.J. at 445

(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.” Id. At 444. Appellant 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 
United States v. Torres, NMCCA No. 201800335

Opinion of the Court (Upon Reconsideration)

5

prejudicial than probative with regard to the evidence he offered in aggravation.”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 attachment, 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 13. 

6 R. at 53.

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.
United States v. Torres, NMCCA No. 201800335

Opinion of the Court (Upon Reconsideration)

6

Even assuming lackadaisical management, Appellant admitted he was without 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 appropriate 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