UNITED STATES, v. Staff Sergeant CALVIN R. GIBBS Serving Life in Prison : One More Appeal

2011 Staff Sgt. Calvin Gibbs was found guilty of murder and other charges and sentenced to life in prison. Appeals followed. Another appeal based on new evidence has been filed in 2020 in a civilian court to vacate the sentence.

The latest appeal in 2018 in the military courts tells the facts of the case:

A. Unit Conditions at Forward Operating Base Ramrod, Afghanistan

Appellant was one of the squad leaders of a remarkably ill-disciplined platoon deployed to Afghanistan between 2009 and 2010. While deployed, he and other members of the platoon conspired to kill Afghan noncombatants by staging the killings as lawful lethal engagements. Amongst other offenses, this conspiracy resulted in the separate murders of three Afghan males.

A military panel sitting as a general court-martial convicted appellant, contrary to his pleas, of three specifications of conspiracy (one to commit premeditated murder, one to commit battery, and one to commit aggravated assault with a dangerous weapon), three specifications of premeditated murder, assault1consummated by battery, aggravated assault with a dangerous weapon, wrongful possession of bones and a tooth taken from Afghan corpses, wrongful solicitation of another to cut the finger off a corpse, two specifications of obstruction of justice, two specifications of dereliction of duty, and failure to obey a lawful general order,

Appellant deployed from the Republic of Korea to Afghanistan in 2009 with the 5th Stryker Brigade Combat Team (SBCT). During the deployment, appellant moved to a platoon at Forward Operating Base (FOB) Ramrod to serve as a squad leader. Prior to appellant arriving at FOB Ramrod, the platoon had only engaged and killed one Taliban fighter. However, the unit had experienced several Improvised Explosive Device (IED) attacks and while on patrols routinely saw “squirters,” suspected Taliban fighters fleeing from engagement on motorcycles. The platoon was generally frustrated with their inability to directly engage the Taliban in combat.

This frustration was combined with a remarkable lack of platoon discipline. A number of soldiers routinely smoked hashish. Appellant was aware of and condoned the drug use, even though he did not use drugs himself. The platoon also had lax grooming standards and had several disengaged officer and non- commissioned officer (NCO) leaders that condoned misconduct in the company.3For example, a platoon leader allowed members of the unit to mutilate an Afghan corpse and take pictures with the body.

Around December 2009, a well-liked NCO in the platoon lost his leg in an IED attack and had to be medically evacuated from Afghanistan. Prior to the attack, the NCO had volunteered to go on the patrol while appellant remained at the FOB. Appellant felt remorse for not going on the patrol. This particular attack greatly added to the frustration of the platoon.

B. The Agreement to Kill Unarmed Afghans

On several patrols, appellant commiserated with Corporal (CPL) Jeremy Morlock, a member of another squad within appellant’s platoon, about the IED attack.4 Appellant resented not only the Taliban and enemy insurgents, but Afghans

in general. Appellant referred to them as “savages” and other derogatory terms, believing they should be killed. Over the course of several conversations, appellant’s hatred eventually led him to discuss the prospect of murdering unarmed Afghans. Appellant told CPL Morlock that on a previous deployment to Iraq he had unlawfully killed the occupants of a vehicle at a checkpoint and subsequently lied to his command by claiming it had been a lawful engagement.

Appellant and CPL Morlock discussed fabricating similar “scenarios” in order to justify unlawfully killing local Afghans. In one scenario, a “drop weapon” could be planted on a body to make it look like an Afghan died while engaged in hostile acts against the platoon. Another scenario involved detonating a grenade to make it appear as if the murdered Afghan had thrown the grenade. They agreed the scenarios would be more believable if the killings occurred in pro-Taliban villages and involved military-age males.

Eventually, CPL Morlock and appellant included Staff Sergeant (SSG) David Bram and Sergeant (SGT) Darren Jones in their discussions about killing noncombatant Afghans. Appellant and CPL Morlock also discussed the planned scenarios with other platoon members, including Private First Class (PFC) Andrew Holmes, Specialist (SPC) Adam Winfield, SPC Michael Wagnon II, CPL Emmitt Quintal, PFC Ashton Moore, SPC Adam Kelly, and SPC Corey Moore. Some of the junior soldiers were motivated by the prospect that the staged killings could earn them Combat Infantryman Badges, awards, and the ability to tell combat stories. Appellant asked other soldiers in the platoon about their thoughts on being part of a “small kill team,” being part of “black ops,” and killing unarmed civilians with grenades and Claymore mines.

Ultimately, appellant contacted an NCO from another unit on the FOB and obtained a crate of grenades without going through his platoon’s resupply system. Appellant did not add them to his platoon’s accountability records. In December 2009, appellant gave CPL Morlock one of these off-the-books grenades.

C. Murder of an Unarmed Afghan Civilian at La Muhammad Kalay

On 15 January 2010, CPL Morlock and PFC Holmes were patrolling the village of La Muhammad Kalay when they saw several Afghan males working in a field. They had an interpreter call one of the Afghans to them and then dismissed the interpreter. The Afghan stood twenty feet away from them on the other side of a waist-high wall while they discussed implementing the grenade scenario. The Afghan never displayed any hostile intent or committed a hostile act. Corporal Morlock then activated the off-the-books grenade, dropping it over the wall, and PFC Holmes shot the Afghan with his automatic weapon.

Appellant and other members of the platoon, including SSG Bram, ran towards the sound of the grenade explosion and weapons fire. There were lines of white powder on the ground, indicating use of a U.S. grenade. Staff Sergeant Bram kicked dirt around, erasing the white film. Platoon members searched the dead body and found no weapons or ammunition. Appellant cut off a finger from the body and the next day gave it to PFC Holmes as a trophy because PFC Holmes was the one who shot the Afghan. Later, CPL Morlock apologized to appellant for implementing the scenario without him. Appellant replied, “Well, you know, no problem. You did a good job. You did exactly what we talked about.”

D. Appellant Obtains an AK-47 Drop Weapon

In January 2010, an Afghan National Police (ANP) vehicle was struck by an IED outside of FOB Ramrod. Appellant recovered an AK-47 and magazines from the IED site. The AK-47 was made with black material and metal, and had a collapsible assault-style stock. Initially, appellant and CPL Morlock discussed using the AK-47 in a similar manner as the off-the-books grenade, but decided to let SSG Bram come up with a plan. The AK-47 was kept in a storage compartment of SSG Bram’s Stryker vehicle. Staff Sergeant Bram, CPL Quintal, and CPL Morlock discussed potentially using the AK-47 as a drop weapon after engaging a “squirter.” After this plan failed to materialize, appellant and CPL Morlock discussed finding
an isolated Afghan, killing him, and staging the AK-47 afterward.

E. The Conspiracy Begins to Unravel

In February 2010, SPC Winfield, appellant’s vehicle commander, left their Stryker unsecured. As a result, appellant chastised SPC Winfield and made him do physical exercises. In turn, SPC Winfield got mad and told appellant he “quit” as the vehicle commander. Appellant, later, told CPL Morlock he was concerned SPC Winfield might reveal the murders. Appellant also spoke with SPC Winfield, told him not to say anything, and told him “you know what will happen if you do.” Specialist Winfield understood this to be a threat that he would be killed.

On 14 February 2010, SPC Winfield sent his parents Facebook instant- messages.5 He informed them that he got in trouble for leaving his Stryker unlocked and quit his job as vehicle commander. Specially, he wrote: “i cannot work for my squad leader who punishes me for leaving a Stryker unlocked and gives high fives to the guy who kills innocent people and plans more with him.” He told his father an

Afghan farmer was murdered the previous month by making it look like the Afghan threw a grenade. He informed his father the whole platoon knew it was staged. He did not know who to trust, was thinking about speaking to a chaplain, but was already receiving threats. He suggested that his father could go to the Army Inspector General or Criminal Investigation Command (CID). He explained to his father, “well if you talk to anyone on my behalf i have proof they are planning another one [murder] in the form of an ak47 they want to drop on a guy.” His father was afraid for his son’s safety. Specialist Winfield told his father he thought he convinced his platoon he was not going to say anything.

F. Murder of Unarmed Afghan Civilian at Kari Kheyl

On 22 February 2010, the platoon went on a mission to Kari Kheyl village. The perception that Kari Kheyl was a source of Taliban activity lent itself to a scenario. While preparing to leave FOB Ramrod, appellant and CPL Morlock discussed isolating an individual in the town, killing him, and then planting the AK- 47 acquired from the ANP on the body. They hid the acquired AK-47 and magazines in appellant’s assault pack. The AK-47 did not initially fit, so they removed the flash suppressor and forced the assault pack closed.

Upon entering the village, appellant, the platoon leader, and other members of the unit met with the village elders. Later, appellant escorted an unarmed Afghan male to CPL Morlock’s position. At the time, CPL Morlock was with SPC Michael Wagnon securing the outside of a compound. Appellant asked CPL Morlock and SPC Wagnon if they wanted to “smoke this guy.” All three agreed to kill the Afghan and make it appear the Afghan fired on appellant with the AK-47.

Appellant then entered into the compound. Specialist Wagnon and CPL Morlock waited outside the entry, but CPL Morlock could still see appellant. The Afghan never displayed any hostile intent or committed a hostile act. Appellant fired rounds into the wall by the entry, making it appear the Afghan had shot in appellant’s direction. Appellant then shot the Afghan. Appellant then dropped the AK-47 near the Afghan. Specialist Wagnon and CPL Morlock then entered the compound and also shot at the Afghan. The Afghan was killed.

Another squad leader in the platoon, SSG Kris Sprague, heard the gun fire and arrived first at the scene of the shooting. Appellant reported the Afghan shot at him and then the Afghan’s weapon “jammed,” allowing appellant to return fire.

Staff Sergeant Sprague was an AK-47 enthusiast and recognized the weapon by the Afghan as a Hungarian AMD 65 that was used by the ANP. Staff Sergeant Sprague retrieved the AK-47 and carried it while clearing the compound. No other weapon or ammunition was found in the compound. He initially noticed the weapon was on safe and later, when clearing the weapon, determined it did not have a round

n the chamber. The AK-47 was missing a hand guard, sling, and flash suppressor (“muzzle break”). Staff Sergeant Sprague requested permission to fire the weapon because he had never had an opportunity to fire an AK-47 in full automatic. Appellant tried to dissuade him from firing the weapon, stating it may have defective or dangerous ammunition. However, SSG Sprague fired a burst from the AK-47. It did not malfunction.

After the squad searched and took identifying data from the body, appellant cut off one of the Afghan’s fingers with a pair of trauma shears, keeping it as a trophy. The Afghan was placed in a body bag. As the platoon left Kari Kheyl, they came under direct and indirect fire from mortars and small arms.

G. Shooting at Unarmed Afghan Farmers

Appellant obtained an 81mm U.S. mortar round from an Afghan National Army (ANA) compound. At some point, he also obtained a rocket propelled grenade (RPG) round, a broken Claymore mine held together with duct tape, 20 to 30 feet of detonation cord, some C-4 plastic explosive, and an old Russian pineapple-style grenade. Appellant also tried to obtain a 9mm pistol through a trade with ANA soldiers. Appellant and CPL Morlock discussed using the explosives to create an IED and using the Russian grenade for a scenario.

Appellant contacted a friend, SSG Robert Stevens, a medic, about coming to FOB Ramrod on patrol with the platoon. Appellant informed SSG Stevens they would “find somebody to kill.” Staff Sergeant Stevens volunteered to go to FOB Ramrod while the senior medic there was on leave. He went on patrol with appellant’s platoon for approximately two to three weeks.

On 10 March 2010, SSG Stevens joined appellant on a dismounted patrol that included SGT Jones and SPC Wagnon. Two Afghan farmers were in a field and appellant placed the squad in a trench. Appellant could see the two Afghan males were unarmed, one was carrying a shovel, and neither displayed any hostile intent or committed a hostile act. Appellant pulled SSG Stevens aside, and told him to pull out the duct-taped Claymore mine in his assault pack. Appellant suggested they lure the males towards the squad and kill the Afghans with the Claymore. Staff Sergeant Stevens objected because he thought the Claymore would also kill them.

Appellant falsely shouted one of the Afghans was carrying an RPG. He counted down and gave the order to open fire on the two farmers. When fired upon, the two men ran away. As the squad went to search for the Afghans, appellant told SSG Stevens if both of the Afghans were killed, they would say a third Afghan must have run off with the RPG. Once in the field, an Afghan put his arms up and was searched. All he had was a shovel lying next to his feet. The squad did not believe he was one of the two individuals they had fired upon and released him. They did

not find any indication either of the males were killed or wounded. The squad did not find any weapons in the field—only the shovel.

H. Murder of Unarmed Afghan Civilian at Qualaday

The village of Qualaday was just outside FOB Ramrod. Prior to May 2010, the platoon had patrolled the village and detained an Afghan male who had an IED
in his house. The Afghan was subsequently released. On 2 May 2010, the platoon planned another patrol to this village. Appellant and CPL Morlock discussed looking for an opportunity to use the Russian pineapple grenade in a staged scenario. Before leaving the FOB, CPL Morlock also discussed the scenario with several other members of the platoon, including SPC Winfield and SSG Bram. However, SSG Bram informed appellant and CPL Morlock he was no longer interested in conducting scenarios.

While on patrol, CPL Morlock and SPC Winfield entered a small compound and were immediately greeted by an elderly Afghan male along with some children and a woman. Appellant arrived shortly thereafter and had the elderly gentlemen walk outside the compound. Appellant, CPL Morlock, SPC Winfield and SPC Corey Moore then discussed killing the Afghan and claiming the Afghan attacked them with two grenades.

Appellant, CPL Morlock, and SPC Winfield set-up around the elderly gentleman. Appellant, then, threw a grenade at the Afghan, blowing apart his legs. Corporal Morlock and SPC Winfield shot at the Afghan. Afterward, appellant walked over to the body and shot the Afghan twice in the head. Corporal Morlock placed the Russian pineapple grenade next to the Afghan’s body. The pineapple- style grenade was the same one appellant previously obtained from the ANA base.

Corporal Morlock told the platoon leader that the Afghan had approached them with two grenades. He reported that he and SPC Winfield shot the Afghan and the Afghan dropped one of the grenades, blowing off his own legs. He informed the platoon leader he believed the other grenade was still by the Afghan’s body. This grenade was the Russian pineapple grenade he had just planted. The platoon ultimately searched the body and found no other weapons or ammunition. Appellant later cut off a finger from the Afghan’s hand and removed a tooth. The rest of the compound was searched and the platoon did not find any other weapons, ammunition, or military aged males.

While still at the site, appellant walked up to SPC Winfield and told him he was a “made man and [he] didn’t have anything to worry about as far as [appellant].”

I. The Conspiracy is Exposed

In early May 2010, PFC JS became annoyed that members of his platoon smoked hashish in his Containerized Housing Unit (CHU). He reported the drug use and the platoon subsequently learned of the report. Members of the platoon including CPL Morlock and appellant agreed to deal with PFC JS and intimidate him to ensure he would not speak further with the command.

On 5 May 2010, appellant, CPL Morlock, SSG Bram, SPC Corey Moore, CPL Quintal, SGT Jones, and SPC Kelly went to PFC JS’s CHU to confront him. They discussed not hitting him above the neck so as not to leave any marks. At first PFC JS denied speaking to the command, but eventually broke down under physical duress. After admitting he informed the command about the drug use, appellant and the other soldiers punished PFC JS, holding him down and alternating between group and individualized threats and beatings. They told PFC JS to keep his mouth shut before filing out of the CHU.

Later, appellant, CPL Morlock and another soldier PFC Michael LeCroy returned to reinforce their message. Appellant pulled out two severed fingers and threatened to kill PFC JS if he did not keep his mouth shut. They suggested a scenario where they could take PFC JS on a mission, execute him, and blame it on the enemy. Private First Class JS had seen the fingers before and knew they came from dead Afghans. Private First Class JS was afraid of the threats, and thought he would be killed. He did not report the beating until pressured for an explanation by an NCO from another unit who discovered the injuries and bruises on his body.

J. CID Interviews and Search of FOB Ramrod

Based on PFC JS’s reports CID opened an investigation. On 11 May 2010, CPL Morlock, SPC Winfield, CPL Quintal, PFC JS, and appellant were transported to Kandahar Airfield (KAF) for questioning. Explosive Ordnance Disposal conducted a search of FOB Ramrod. They found the 81mm mortar and RPG round hidden in HESCO barriers near appellant’s CHU. CID also conducted a search and found two fingers and bones in the HESCO barriers near appellant’s CHU and the duct-taped claymore mine in appellant’s Stryker.

K. The Courts-Martial

A series of courts-martial followed. Appellant was tried after all of the other trials except for the trials of SPC Wagnon and SSG Bram. All of the tried soldiers that testified at appellant’s trial were granted immunity. Staff Sergeant Bram and SPC Wagnon’s courts-martial were not completed at the time of appellant’s trial, and they were never called as witnesses by either party.

Legal arguments followed

While portions of SSG Bram’s testimony were sufficiently believable, it does not make a more favorable result probable. The testimony had limited impeachment value and overall was damaging in appellant’s case. As previously discussed, SSG Bram’s testimony would have provided limited impeachment evidence focused on one piece of the timeframe of the AK-47’s whereabouts and one potential inconsistent statement by CPL Morlock. His testimony also would confirm that the AK-47 was stored in his Stryker for use as a drop weapon and it was no longer there upon his return from leave. SSG Bram also would have provided the government with a prior consistent statement to bolster CPL Morlock’s testimony that the AK-47 was specifically used at the Kari Kheyl shooting. This statement was made before CPL Morlock would have had a motive to fabricate the allegations against appellant.

Lastly, the evidence presented against appellant was overwhelming when compared with the potential impeachment value of the evidence provided by SPC Wagnon and SSG Bram. Considering all the other evidence presented at appellant’s trial, evidence from SPC Wagnon and SSG Bram was unlikely to produce a “substantially more favorable result for appellant.” R.C.M. 1210(f)(2)(C).

CONCLUSION

Upon consideration of the entire record, the findings of guilty and the sentence are correct in law and fact and are AFFIRMED.

Chief Judge BERGER and Senior Judge BURTON concur.