United States v. Sergeant First Class FREDDERICK NORMAN

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before MORRIS, JUETTEN, and MURDOUGH Appellate Military Judges UNITED STATES, Appellee v. Sergeant First Class FREDDERICK V. NORMAN United States Army, Appellant ARMY 20230498 Headquarters, Eighth Army Matthew S Fitzgerald, Military Judge Colonel Rebecca K. Connally, Staff Judge Advocate (pretrial) Lieutenant Colonel Cinnamon J. Chielens, Acting Staff Judge Advocate (post-trial)

For Appellant: Captain Emily R. Ittner, JA (argued); Colonel Philip M. Staten, JA; Lieutenant Colonel Autumn R. Porter, JA; Major Robert M. Luyties, JA; Captain • Emily R. Ittner, JA (on brief); Colonel Philip M. Staten, JA; Lieutenant Colonel Robert M. Luyties, JA; Captain Amir R. Hamdoun, JA; Captain Emily R. Ittner, JA (on reply brief).

For Appellee: Captain Melissa D. Zigrang, JA (argued); Colonel Richard E. Gorini, JA; Major Marc B. Sawyer, JA; Captain Alex J. Berkun, JA (on brief).

10 December 2025 MEMORANDUM OPINION

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MURDOUGH, Judge: Over the course of three prosecutions, the appellant was charged and convicted twice, once pursuant to his plea and once contrary to his plea, for the same offense. The government's justification for the third and final prosecution was that appellant failed to comply with his promise to plead guilty in the second proceeding.

We disagree and set aside the finding and sentence.

A general court-martial consisting of an enlisted panel convicted appellant, contrary to his pleas, of one specification of violating a lawful general regulation, in NORMAN - ARMY 20230498 violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892 [UCMJ].

The panel sentenced appellant to 101 days of confinement, to be restricted for 60 days to the limits of Camp Humphreys, Republic of Korea, and to be reduced to the grade of E-6. Appellant received 101 days of pretrial confinement credit and four additional days of judicially-awarded credit.

Appellant raises two assignments of error: first, that the military judge erred when he ruled that the convening authority properly withdrew from a prior plea agreement, and second, that his third and final prosecution violated his protections against former jeopardy. 1 We agree with appellant on both assignments of error, set aside the guilty finding and sentence, and dismiss the affected charge and specification.2 BACKGROUND A. Norman I and the plea agreement At all relevant times, the appellant was stationed in the Republic of Korea and subject to the general court-martial convening authority (GCMCA) of the Commanding General, Eighth Army. For a brief period in 2021, the appellant was in a relationship with a junior enlisted soldier who would come to be identified in the record as "AV2." AV2 alleged that appellant sexually assaulted her on or about 9 April 2021. On 29 June 2022, the GCMCA referred to a general court-martial charge alleging three violations of Article 120, UCMJ (the AV2 sexual assault charge), and a second charge alleging a single specification in violation of Article 92. This charge alleged that the appellant violated paragraph 4-14 of Army Reg. 600-20, Army Command Policy (24 July 2020), also on or about 9 April 2021, by fraternizing with AV2, or "wrongfully creating a clearly predictable perception of undue familiarity" between AV2 and himself.

Our grant of oral argument slightly rephrased the appellant's original assignment of error, which asserted that the successive prosecution violated both his due process rights and his right against self-incrimination. Appellant's self-incrimination argument was an attenuated assertion that, after pleading guilty in one court-martial, the government impermissibly used statements he made against him in the successive court-martial - this argument has no support in the record. Additionally, the majority of the appellant's due process argument on brief was, in actuality, a former jeopardy argument.

Because of our decision on the assigned issues, we do not address the matters that the appellant personally submitted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

NORMAN - ARMY 20230498 The appellant was arraigned on these charges and specifications before a general court-martial (Norman/). After pretrial litigation, AV2 declined to further participate shortly before trial on the merits was scheduled to begin.

The GCMCA and appellant then entered into a plea agreement. Pursuant to the plea agreement, the GCMCA would withdraw the charges and specifications from the general court-martial and would refer only the fraternization specification to a summary court-martial, at which the appellant agreed to plead guilty. Per the agreement, the withdrawn sexual assault specifications were dismissed without prejudice, "to ripen into prejudice upon announcement of sentence at a Summary Court-Martial." There were no other material terms of the plea agreement.

On 22 February 2023, pursuant to the plea agreement, the GCMCA withdrew the charges and specifications from the general court-martial, terminating the proceedings in Norman I prior to assembly. He dismissed the AV2 sexual assault charge without prejudice and referred the fraternization charge and its specification to a summary court-martial (Norman II).

B. Norman II The summary court-martial convened on 16 March 2023. Appellant pied guilty to the Article 92, UCMJ, violation; the summary court-martial found him guilty pursuant to his plea and sentenced him to reduction to the grade of E-6, a reduction of one pay grade. The appellant's trial defense counsel, who had represented him in Norman I and co-signed the plea agreement, was present at the summary court-martial. 3 The summary court-martial did not produce a recording or transcript, verbatim or otherwise. The only official record of the proceedings is the Department of Defense [DD] Form 2329.4 On 23 March 2023, trial defense counsel submitted clemency matters to the GCMCA pursuant to Rule for Courts-Martial [R.C.M.] 1306(a), requesting the GCMCA disapprove or suspend the sentence of the summary court-martial. In his

In matters submitted pursuant to R.C.M. 1306, discussed further infra, the appellant's trial defense counsel asserted that he was only present because the trial counsel insisted on befog present for the summary court-martial as well, in contravention of Army Reg. 27-10, Legal Services: Military Justice. The military judge in ruling on the motion noted this allegation but did not find this as fact. We do not adopt it either, nor do we need to resolve the issue of whether or why a government counsel was present for Norman II. This same defense counsel would later rejoin the defense team for Norman III.

Neither R.C.M. 1112 nor R.C.M. 1305 require an audio recording or verbatim transcription of summary court-martial proceedings.

NORMAN - ARMY 20230498 memorandum,the defense counsel summarized what had transpired. First,he described appellant's version of events: "he had met [AV2] in civilian clothes off base at a local club....and she represented that she was a [sergeant]." Trial defense counsel continued, "Approximately 29 March 2021,[appellant] discovered that she was actually a [specialist]. She represented that she would be going to her basic leadership course soon,and would become a [sergeant] shortly thereafter,so he did not immediately break it off. However ...on 9 April 2021,he found out that she was not going to attend BLC soon and he ended the relationship." Next,defense counsel stated that appellant,in presentencing, had called three character witnesses who testified that "in their opinion,if [appellant] had known [AV2's] rank from the start, he would have never gotten involved with her." Defense counsel concluded that appellant's punishment did "not fit the crime for which [appellant] ple[]d guilty to and [was] not supported by the evidence that was presented at the [summary court-martial]." (emphasis omitted). Additionally,trial defense counsel asserted a host of "substantial procedural errors which prejudiced the proceedings against [appellant]," including the consideration of inadmissible evidence and ex parte communications between the summary court-martial officer and a government paralegal. He reiterated the request to disapprove the sentence.

The paralegal who was present and supported the summary court-martial prepared a memorandum for record (MFR),also dated 23 March 2023,in which he recounted the unsworn statement the appellant provided at presentencing. In relevant part,the paralegal MFR asserts the appellant: read from AR 600-20,para[graph] 4-14b(l)-(5),after each subparagraph briefly explaining why he did not violate each respective element of fraternization. He then read para[graph] 4-12c(2)(b) and stated that when he found out that [AV2] was not an N CO, this was a "change in status " by the definition of the regulation and he complied with the requirement in that subparagraph to terminate the relationship ....

The paralegal's MFR notes that the summary court-martial officer had "one follow-up question." The court-martial "asked whether [appellant] was made aware of the true rank of [AV2] before or after some particular date,and [appellant],after looking through the packet of evidence,replied 'after."' The paralegal could not recall the specific date discussed.

On 5 April 2023,the GCM CA took action pursuant to R.C.M.1306(b) on the findings and sentence of Norman II. His annotation on the DD Form 2329 states, "Based on post-trial matters submitted, I set aside the finding of the Summary Court-Martial and direct a rehearing in accordance with R.C.M.1306(b)(2)(B)(ii)

NORMAN - ARMY 20230498 and R.C.M. 810. In accordance with the post-trial matters, a new [summary court­ martial officer] will be appointed." A week later, on 12 April 2023, the staff judge advocate (SJA) recommended the GCMCA withdraw from the 16 February plea agreement, quoting in part R.C.M.

705(e)(4)(B). 5 She asserted, nonspecifically, that the appellant "ha[d] not substantially performed any of the promises contained in the plea agreement dated February 2023;" and "[t]here is probable cause to believe that [appellant] engaged in serious misconduct on 1 7-18 March 2023." 6 The GCMCA approved and executed that recommendation.

C. Norman III Prosecution began anew on 31 May 2023 when an accuser preferred a new set of charges against the appellant on a new charge sheet. This included seven specifications alleging sexual assault in violation of Article 120, UCMJ. Three of the specifications, alleging sexual assault against AV2, were virtually identical to those in Norman I. The remainder alleged sexual ijssaultS against AVland AV3. The preferred charges also included a fraternization specification identical to the one referred to both Norman I and Norman II, alongside other charges and specifications.

Following an Article 32 preliminary hearing, the GCMCA referred these charges to a general court-martial on 20 June 2023 (Norman Ill).

After referral, appellant moved to dismiss all charges and specifications related to AVl and AV2 for a variety of reasons, including speedy trial, unlawful command influence, and prosecutorial misconduct. He also sought dismissal of the specifications related to AV2 on the basis of double jeopardy. As part of that argument, he asserted the GCMCA was not legally permitted to withdraw from the plea agreement in Norman II.

The military judge denied the defense motion in its entirety. In pertinent part, he concluded that the appellant's guilty plea at Norman II was improvident, due to matters he presented in mitigation and extenuation at both the summary court­ martial and in the R.C.M. 1306(a) matters submitted on his behalf. The military judge concluded, "it is certainly conclusive that a military judge would not have found the accused provident if he were before a military judge." From this The portion of the rule that the SJA quoted states that the convening authority may withdraw from a plea agreement "before substantial performance by the accused of promises contained in the agreement[.]" R.C.M. 705(e)(4)(B)(i).

This "serious misconduct" related to a sexual assault allegation involving another alleged victim who would become known as A V3 in the record, discussed further infra.

NORM AN - ARMY 20230498 conclusion, the military judge further concluded that the GCMC A had properly withdrawn from the Norman II plea agreement, because the appellant had failed to substantially comply with his only obligation - to plead guilty (by implication, providently).

The military judge further ruled that the fraternization specification pertaining to AV2 was not barred by double jeopardy because the GCMC A had set aside the guilty finding before it became final under Article 44, UCM J.

The appellant pied not guilty to all charges and specifications and proceeded to trial on the merits before an enlisted panel. The members found the appellant not guilty of all charges and specifications, except the Article 92, UCM J, fraternization specification, identical to the specification to which he had pied guilty in Norman II.

LAW AND DISCUSSION A. The Military Judge Erred in Concluding Appellant was Improvident in Norman II The military judge ultimately concluded that the government could withdraw from the plea agreement and that Norman III was not jeopardy-barred. The foundation of this ruling was his determination that appellant's plea in Norman II was improvident, constituting a material breach of the plea agreement.

We review a military judge's ruling on a motion to dismiss for an abuse of discretion. United States v.Shelby, 85 M.J.292, 294 (C.A.A.F. 2025) (citation omitted). The military judge abuses his discretion when, inter alia, he bases his ruling on findings of fact not supported by the record, uses incorrect legal principles, or ignores important facts. Id. ( citation omitted). "The abuse of discretion standard is a strict one, calling for more than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous." United States v.Lloyd, 69 M.J.95, 99 (C.A.A.F. 2010) (internal quotation marks omitted) (citation omitted).

In this instance, the military judge made multiple factual errors in his ruling.

First, he misquoted the trial defense counsel's R.C.M.1306 submission. The judge's ruling states the defense counsel "assert[ed] that A V2 had misrepresented her rank to the accused up to 9 April 2021 ...." The R.C.M.1306 memorandum says, " Approximately 29 March 2021, [appellant] discovered that she was actually a [specialist]." Moreover, the military judge stated "[appellant] was charged with fraternizing with A V2 on a very specific date, 9 April 2021 .... " (emphasis added).

He was not; he was charged with violating the prohibition against fraternization "on or about 9 April 2021." (emphasis added). These two factual errors became the linchpin of his determination that the appellant had set up matters inconsistent with

NOR M AN - AR MY 20230498 his guilty plea.7 In other words, the military judge ignored the important fact that the defense counsel conceded that, from approximately 29 March until 9 April 2021, the appellant knew AV2's true rank but nonetheless persisted in the prohibited relationship.8 Additionally, the military judge applied incorrect legal principles when he failed to give appropriate deference to the findings of the summary court-martial officer in Norman II, when he concluded "by a preponderance of the evidence that [appellant] breached the plea agreement by failing to plead guilty ...." He correctly noted that in general, prior to reinstituting withdrawn or dismissed charges, the government was required to prove, by a preponderance of evidence, that the appellant had breached the plea agreement. E.g., United States v. Smead, 68 M.J.44, 62 ( C.A.A.F. 2009) (citing R.C.M.705(b) discussion).9 However, he did not apply the correct legal standard specifically for reviewing the providence of a guilty plea. See also United States v. Merritt, 72 M.J.483, 486 ( C.A.A.F. 2013) (citation omitted) (we review de novo the question of whether the military judge applies the proper legal principle in denying a motion to dismiss).

The military judge made these factual assertions in the "analysis and conclusions of law" portion of his ruling.While he correctly quoted the relevant documents in the "findings of fact" portion of his ruling, the latter (incorrect) factual assertions formed the basis for his legal conclusions. "[W]e do not think it important where in the military judge's ruling the factual finding was located. What matters more is whether the military judge relied on the fact in reaching a legal conclusion." United States v. Lewis, 78 M.J.602, 615 ( Army Ct. Crim. App. 2018) (emphasis in original), aff'd 78 M.J.447 ( C.A.A.F. 2019).

The scant factual record of what actually was said at the summary court-martial magnifies the significance of these errors in factual findings. Though, as discussed infra, the government bore the burden to establish that the appellant had breached a material term of the plea agreement, the government called no witnesses who were present for Norman II. Instead, to establish what had transpired, the government relied on the trial defense counsel's post-trial submission and the paralegal M FR, both written on the same day, a week after the summary court-martial, a sum total of six pages in the record. In his ruling, the military judge put more emphasis on the R.C.M.1306 submission than the paralegal M FR.

The text of and discussion to R.C.M. 705(b) remain unchanged since Smead was decided. This part of the trial judge's ruling encompassed both the fraternization specification as well as the reinstitution of the AV2 sexual assault specifications.

We do not address that portion of his ruling; all error in the re-preferral and re­ referral of those specifications, purportedly dismissed with prejudice pursuant to the plea agreement in Norman I-II, is harmless because the panel in Norman III acquitted the appellant of those specifications.