A landing craft, air cushion (LCAC) from Assault Craft Unit 5 approaches the well deck of amphibious assault ship Makin Island on Aug. 1, 2022. A petty officer assigned to ACU-5, Machinery Repairman 3rd Class Gasper Moreno Jr., has failed to overturn his conviction for sexually assaulting a Navy shipmate. US Navy photo by Mass Communication Seaman Apprentice Joshua Martinez.
A military appellate court has nixed an appeal filed by a Navy petty officer convicted of fellating a tipsy shipmate without his consent.
A unanimous ruling handed down Wednesday, Dec. 14, by the US Navy-Marine Corps Court of Criminal Appeals in Washington, DC, refused to overturn the early 2021 conviction of Machinery Repairman 3rd Class Gasper Moreno Jr.
A Navy judge at Naval Station San Diego convicted Moreno of sexual assault and ordered him confined for 18 months, reduced to machinery repairman fireman recruit, and then dishonorably discharged from the sea service.
But Moreno appealed his conviction, arguing the judge mistakenly tried him for a hidden charge and also failed to fork over evidence tied to the firing of the lead Naval Criminal Investigative Service special agent in his case.
A landing craft, air cushion assigned to Assault Craft Unit 5 prepares to load gear during the Rim of the Pacific exercise on Marine Corps Base Hawaii on July 12, 2022. US Marine Corps photo by Cpl Jerry Edlin.
Attempts by Coffee or Die Magazine to reach Moreno in California were not successful. He didn't return messages seeking comment. His military attorney also did not release a statement concerning Moreno's case.
They have until early February to appeal the latest decision to the US Court of Appeals for the Armed Forces.
The case against Moreno began shortly after an Aug. 24, 2019, farewell party attended by a second-class hull technician left unnamed in the opinion.
At the time, Moreno was assigned to Assault Craft Unit 5’s shore command at Marine Corps Base Camp Pendleton, according to his military records.
The hull technician recalled downing at least three shots of Jameson’s Irish Whiskey and three cans of beer. He also recollected playing beer pong, but nothing after that. He awoke later to someone tugging down his shorts and performing oral sex on him, then he heard Moreno’s voice.
A landing craft, air cushion (LCAC), assigned to Assault Craft Unit 5, approaches the well deck of amphibious assault ship Makin Island, Aug. 29, 2022, in the Pacific Ocean. Navy LCACs transport Marine land vehicles and troops from ship to shore. US Navy photo by Mass Communication Specialist 3rd Class Analice C. Baker.
That’s when he realized he was in the barracks. The sailor pushed away from Moreno, got up, and left.
“I remember starting to come to, after blacking out, in [Moreno’s] bedroom,” the hull technician later testified at the general court-martial. “I could feel someone adjust my — adjusting my body…I felt hands on my hips…The first thing I heard was kind of like ruffling of cloth and the sound of my zipper coming down…I started feeling someone give—giving me oral sex.”
When NCIS investigators interrogated Moreno, he confessed to fondling the hull technician’s genitals and performing oral sex on him, but he thought the sailor was asleep.
And during his closing argument, Moreno’s trial counsel argued that the hull technician had granted consent for the sexual act, but later regretted it, an alibi the Navy judge didn’t believe.
A landing craft, air cushion from Assault Craft Unit 5 departs the well deck of amphibious assault ship Makin Island in the Pacific Ocean on July 11. 2022. US Navy photo by Mass Communication Specialist 3rd Class Eloise A. Johnson.
The Navy judge, Capt. Ryan J. Stormer, backed up his reasoning by noting the lack of flirting, any verbal expression of consent, or even physical contact between the two men before Moreno put the sleeping hull technician’s penis in his mouth.
But Moreno said that was unfair. In his appeal, he argued Stormer misinterpreted the lack of consent and convicted him, without notice, under a different crime that wasn’t charged — attempted sexual assault while the other is asleep.
He had been charged with that crime earlier, but the convening authority removed it before the trial kicked off.
The appellate judges disagreed.
Landing craft, air cushion 76 from Assault Craft Unit 5 lands on Marine Corps Base Hawaii during the Rim of the Pacific exercise on July 11, 2022. US Marine Corps photo by Sgt. Melanye Martinez.
They pointed out that just because Moreno believed the hull technician was asleep doesn’t mean he really was snoozing. At the trial, the hull technician testified he'd awakened after Moreno began performing oral sex, a span of roughly 30 seconds.
A sleeping sailor can’t give consent to a sexual act, the judges said, so the captain was correct in using that as evidence that the hull technician never granted his consent for the fellatio.
But that’s not all Moreno wanted.
He pointed to the problem of the NCIS agent. Unnamed in the decision, she was slated to testify against Moreno, but then her appearance was canceled due to “unauthorized absence from her place of duty and failing to report for a fitness-for-duty examination,” according to NCIS.
A landing craft, air cushion from Assault Craft Unit 5 lands at Marine Corps Base Hawaii during the Rim of the Pacific exercise on July 11, 2022. US Marine Corps photo by Sgt. Melanye Martinez.
She’d conducted his interrogation, several other witness interviews, and collected his DNA. She was always accompanied by at least one other agent during these steps, but Moreno wanted to see the documents tied to her termination.
Prosecutors refused to turn them over, saying that her privacy rights would be violated and the law enforcement mission of NCIS harmed if other agents knew their sensitive personnel files would be surrendered to people outside the agency.
After looking over the records, Capt. Stormer released some documents that indicated she’d been placed on limited duty for debilitating migraines before removing her from federal service, but the rest he withheld.
During the court-martial proceedings, Moreno's trial lawyer had filed an appeal to the same Washington, DC, court to get those records, but the justices barred them.
A High Mobility Artillery Rocket System from 1st Battalion, 12th Marines, is loaded onto a landing craft, air cushion from Assault Craft Unit 5 during the Rim of the Pacific exercise on Marine Corps Base Hawaii, July 11, 2022. US Marine Corps photo by Sgt. Melanye Martinez.
And they didn’t change their minds with their latest ruling.
“The military judge’s findings of fact were supported by the evidence, he used correct legal principles, and he applied them reasonably,” the justices wrote. “For these reasons, we find that the military judge did not abuse his discretion.”
Navy records show that Moreno was imprisoned from March 24, 2021, to June 14, 2022.
Then he was detached from the Navy, but he officially remains on unpaid leave while his appeal percolates through the military criminal justice system.
Moreno's career in the Navy was brief.
Military records indicate he enlisted on Sept. 28, 2018. After boot camp in Great Lakes, Illinois, he began his surface warfare engineering school and graduated on Feb. 27, 2021.
He then reported directly to Camp Pendleton.
Moreno was advanced to petty officer on April 6, 2021.
Carl Prine is a former senior editor at Coffee or Die Magazine. He has worked at Navy Times, The San Diego Union-Tribune, and Pittsburgh Tribune-Review. He served in the Marine Corps and the Pennsylvania Army National Guard. His awards include the Joseph Galloway Award for Distinguished Reporting on the military, a first prize from Investigative Reporters & Editors, and the Combat Infantryman Badge.
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