Petition for Writ of Certiorari — Jonathan M. Martinez, Petitioner v. United States
Supreme Court briefSep 8, 2023
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No. 23-___
IN THE
Supreme Court of the United States
__________
JONATHAN M. MARTINEZ, ET AL.,
Petitioners,
v.
UNITED STATES,
Respondent.
__________
On Petition for a Writ of Certiorari to
the United States Court of Appeals
for the Armed Forces
__________
PETITION APPENDIX
__________
JONATHAN F. POTTER
JUSTIN L. WATKINS
TUMENTUGS D. ARMSTRONG
Defense Appellate Division
U.S. Army Legal Servs. Agency
9275 Gunston Road
Fort Belvoir, VA 22060
DAVID L. BOSNER
SAMANTHA P. GOLSETH
Air Force Appellate Defense Div.
1500 West Perimeter Road
Suite 1100
Joint Base Andrews, MD 20762
STEPHEN I. VLADECK
Counsel of Record
727 E. Dean Keeton Street
Austin, TX 78705
(512) 475-9198
svladeck@law.utexas.edu
COLIN W. HOTARD
Appellate Defense Counsel
Code 45
1254 Charles Morris St., S.E.
Suite 100
Washington, DC 20374
Counsel for Petitioners
September 8, 2023
TABLE OF CONTENTS
Martinez
C.A.A.F. Decision (July 18, 2023) ............................ 1a
Air Force CCA Decision (Apr. 6, 2022) .................... 2a
Aikanoff
C.A.A.F. Decision (July 18, 2023) .......................... 37a
Army CCA Decision (June 15, 2022) ...................... 38a
Apgar
C.A.A.F. Decision (July 18, 2023) .......................... 57a
Army CCA Decision (May 10, 2022)....................... 58a
Bentley
C.A.A.F. Decision (July 18, 2023) .......................... 60a
Army CCA Decision (Oct. 4, 2022) ......................... 61a
Docilet
C.A.A.F. Decision (July 18, 2023) .......................... 63a
Army CCA Decision (July 18, 2022)....................... 64a
Garrett
C.A.A.F. Decision (July 18, 2023) .......................... 66a
Army CCA Decision (Oct. 21, 2022) ....................... 67a
Johnson
C.A.A.F. Decision (July 18, 2023) .......................... 83a
Army CCA Decision (Apr. 13, 2022)....................... 84a
Lopez
C.A.A.F. Decision (July 18, 2023) .......................... 86a
Air Force CCA Decision (Mar. 7, 2023) .................. 87a
iia
McCameron
C.A.A.F. Decision (July 18, 2023) ........................ 129a
Air Force CCA Decision (Nov. 17, 2022) .............. 130a
Miramontes
C.A.A.F. Decision (July 18, 2023) ........................ 160a
Army CCA Decision (May 20, 2022)..................... 161a
Muñoz-Garcia
C.A.A.F. Decision (July 18, 2023) ........................ 163a
Army CCA Decision (Apr. 28, 2022)..................... 164a
Rubirivera
C.A.A.F. Decision (July 18, 2023) ........................ 168a
Army CCA Decision (Jan. 26, 2023) ..................... 169a
Tarnowski
C.A.A.F. Decision (July 18, 2023) ........................ 171a
Air Force CCA Decision (Nov. 4, 2022) ................ 172a
Vance
C.A.A.F. Decision (July 18, 2023) ........................ 212a
N-MCCA Decision (June 22, 2022) ...................... 213a
Veerathanongdech
C.A.A.F. Decision (July 18, 2023) ........................ 249a
Air Force CCA Decision (Apr. 12, 2022) .............. 250a
Zimmer
C.A.A.F. Decision (July 18, 2023) ........................ 268a
Army CCA Decision (Jan. 4, 2023)....................... 269a
1a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
WASHINGTON, D.C.
United States,
Appellee
v.
Jonathan M. Martinez,
Appellant
USCA Dkt. No. 22-0165/AF
Crim. App. No. 39973
ORDER
On further consideration of the granted issue, 83
M.J. 8 (C.A.A.F. 2022), and in view of United States v.
Anderson, 83 M.J. __ (C.A.A.F. 2023), it is, by the
Court, this 18th day of July, 2023,
ORDERED:
That the decision of the United States Air Force
Court of Criminal Appeals is hereby affirmed.
For the Court,
/s/
Malcolm H. Squires, Jr.
Clerk of the Court
2a
UNITED STATES AIR FORCE
COURT OF CRIMINAL APPEALS
UNITED STATES,
Appellee
v.
Jonathan M. MARTINEZ
Airman (E-2)
U.S. Air Force,
Appellant
No. 39973
Decided: 6 April 2022
Appeal from the United States Air Force Trial
Judiciary
Military Judge: Bryon T. Gleisner (motions); Mark W.
Milam.
Sentence: Sentence adjudged on 13 August 2020 by
GCM convened at Hurlburt Field, Florida. Sentence
entered by military judge on 18 September 2020:
Dishonorable discharge, confinement for 36 months,
reduction to E-1, and a reprimand.
For Appellant: Major Ryan S. Crnkovich, USAF;
Stephen I. Vladeck, Esquire.
For Appellee: Lieutenant Colonel Matthew J. Neil,
USAF; Major Jessica L. Delaney, USAF; Mary Ellen
Payne, Esquire.
Amicus Curiae for Appellant: Barbara E. Bergman,
Esquire; Donald G. Rehkopf, Jr., Esquire—on behalf
3a
of the National Association of Criminal Defense
Lawyers.
Before LEWIS, POSCH, and ANNEXSTAD, Appellate
Military Judges.
This is an unpublished opinion and, as such, does not
serve as precedent under AFCCA Rule of Practice and
Procedure 30.4.
LEWIS, Senior Judge:
A general court-martial composed of officer
members convicted Appellant, contrary to his pleas, of
one specification of wire fraud, two specifications of
attempted wire fraud, one specification of wrongful
use of marijuana, and one specification of
communicating a threat, in violation of Articles 134,
80, 112a, and 115, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 934, 880, 912a, 915. 1,2 Appellant
was sentenced by military judge to a dishonorable
discharge, 36 months of confinement, 3 reduction to
1. Unless otherwise specified, all references to the UCMJ,
the Rules for Courts-Martial (R.C.M.), and the Military Rules of
Evidence are to the Manual for Courts-Martial, United States
(2019 ed.). The wire fraud and attempted wire fraud
specifications incorporated 18 U.S.C. § 1343.
2. The court members acquitted Appellant of one
specification of wrongful use of cocaine and one specification of
negligent discharge of a handgun, alleged as violations of Articles
112a and 134, UCMJ, 10 U.S.C. §§ 912a, 934.
3. The confinement terms ran concurrently and varied from
a low of no confinement for the wrongful use of marijuana
specification to a high of 36 months of confinement for the wire
fraud and communicating a threat specifications..
4a
the grade of E-1, and a reprimand. The convening
authority took no action on Appellant's sentence.
Appellant raises four issues for our consideration:
(1) whether the military judge violated Appellant's
Fifth Amendment 4 and Sixth Amendment 5 rights by
denying a defense request for an instruction that a
guilty verdict required unanimity; (2) whether the
wire fraud and attempted wire fraud convictions were
legally and factually insufficient; (3) whether the wire
fraud and attempted wire fraud convictions were
preempted; and (4) whether Fifth Amendment equal
protection guaranteed Appellant a unanimous verdict
on the wire fraud and attempted wire fraud offenses. 6
Appellant's first issue is raised in light of Ramos v.
Louisiana, ––– U.S. ––––, 140 S. Ct. 1390 (2020). Prior
to trial, the Defense filed a written motion requesting
a unanimous verdict instruction, arguing such an
instruction was required by the Fifth Amendment's
Due Process Clause, the Sixth Amendment's right to
a unanimous jury verdict, and the implicit equal
protection guarantee in the Fifth Amendment. The
Government opposed the motion. The military judge
denied the motion in a written ruling and
subsequently instructed the court members that a
conviction resulted if three-fourths of the members
(six of eight) voted to convict. See Article 52, UCMJ,
10 U.S.C. § 852. The military judge did not poll the
court members on whether the findings verdict was
unanimous. See R.C.M. 922(e) (prohibiting polling of
4. U.S. CONST. amend. V.
5. U.S. CONST. amend. VI.
6. Appellant personally raises issue (4) pursuant to United
States v. Grostefon, 12 M.J. 431, 435 (C.M.A. 1982). We have
reworded the issues slightly.
5a
members about their deliberations and voting except
in specific, limited circumstances). 7
On appeal, Appellant raises similar constitutional
arguments to the ones raised at trial. In Appellant's
view, Ramos makes clear that the right to unanimous
verdict is an essential aspect of the right to an
impartial jury. Appellant cites United States v.
Lambert, 55 M.J. 293, 295 (C.A.A.F. 2001), which
applied the Sixth Amendment requirement that the
“jury be impartial” to court-martial members’
selection,
conduct
during
proceedings,
and
deliberations. 8 Appellant connects Ramos, Lambert,
and other precedents 9 together to argue the military
judge's non-unanimous verdict instruction violated
the Constitution. 10
7. Mil. R. Evid. 606(b) prohibits a court-martial member
from testifying during an inquiry into the validity of a finding or
sentence except for three limited circumstances, specifically,
whether: (1) extraneous prejudicial information was improperly
brought to the members’ attention; (2) unlawful command
influence or any other outside influence was improperly brought
to bear on any member; or (3) a mistake was made in entering
the finding or sentence on the respective forms.
8. The United States Court of Appeals for the Armed Forces
did not address unanimity of verdicts in Lambert. At that time,
Article 52, UCMJ, 10 U.S.C. § 852, required concurrence of twothirds of the members for a finding of guilty in a non-capital
court-martial. See Manual for Courts-Martial, United States
(1995 ed.).
9. For example, “[a]s a matter of due process, an accused has
a constitutional right, as well as a regulatory right, to a fair and
impartial panel.” United States v. Wiesen, 56 M.J. 172, 174
(C.A.A.F. 2001) (citations omitted).
10. Appellant also proposes a narrower ground for requiring
a unanimous verdict. According to Appellant, “at the Founding,
[he] would only have been subject to trial [for these offenses] in a
federal civilian court,” if at all. We find this argument does not
6a
The Government answers that the military judge
did not err, the Sixth Amendment right to a jury trial
does not apply to courts-martial, Ramos did not
overturn that precedent, and that our court must
strictly follow the decisions of higher courts. The
Government reminds us that we should leave the role
of overruling precedent to the higher court that
published the precedent.
Amicus argues a non-unanimous verdict for a
serious offense tried in a noncapital court-martial
within the territorial limits of the United States
violates the Sixth Amendment. According to amicus,
when Congress statutorily provided for a nonunanimous verdict, it contravened “what the
Constitution commands,” namely, a unanimous
verdict. Amicus also alleges a procedural error when
the military judge's ruling assigned the burden of
proof on the motion to Appellant, rather than the
Government.
In issue (4), Appellant personally asserts that the
unanimous verdict instruction was required for the
wire fraud and attempted wire fraud offenses because
Appellant was similarly situated to active duty
military members prosecuted for those offenses in
Article III courts. According to Appellant, the absence
of a unanimous verdict requirement at his courtmartial fails both a strict scrutiny and a rational basis
of review.
We do not read Ramos, Lambert, and the other
precedents in the same manner as Appellant. Ramos
does not mention unanimity of verdicts in courtsmartial. It did not analyze whether an impartial jury
warrant further discussion or relief. See United States v. Matias,
25 M.J. 356, 361 (C.M.A. 1987).
7a
and impartial court members are identical under the
Constitution. Lambert described the right to impartial
court-martial members in three specific areas:
selection, conduct during proceedings, and conduct
during deliberations. Lambert says nothing about
unanimity of a finding of guilt by such members.
Indeed, the United States Court of Appeals for the
Armed Forces (CAAF) affirmed the findings of guilt in
Lambert even though Article 52, UCMJ, at that time,
permitted a conviction by two-thirds of the voting
members. The cited precedent also does not address
whether Congress may use non-unanimous verdicts
under its authority “To make Rules for the
Government and Regulation of the land and naval
Forces.” U.S. CONST. art. 1, § 8, cl. 14. As the United
States Supreme Court has said, “[T]he Constitution
contemplates that Congress has ‘plenary control over
rights, duties, and responsibilities in the framework
of the Military Establishment, including regulations,
procedures, and remedies related to military
discipline.’” Weiss v. United States, 510 U.S. 163, 177
(1994) (quoting Chappell v. Wallace, 462 U.S. 296, 301
(1983)). We find the military judge's ruling, which
instructed the members consistent with the voting
procedures in Article 52, UCMJ, was not error.
We considered the other arguments presented for
issues (1) and (4); we find neither further discussion
nor relief is warranted. See United States v. Matias,
25 M.J. 356, 361 (C.M.A. 1987); see also Agostini v.
Felton, 521 U.S. 203, 237 (1997) (noting that lower
courts should adhere to binding precedent and rely on
superior courts to overrule their own precedents);
Whelchel v. McDonald, 340 U.S. 122, 127 (1950)
(noting the right to trial by jury guaranteed by the
Sixth Amendment is not applicable to trials by courtsmartial or military commissions); United States v.
8a
Easton, 71 M.J. 168, 175 (C.A.A.F. 2012) (stating
there is no Sixth Amendment right to trial by jury in
courts-martial); United States v. Anderson, No. ACM
39969, 2022 WL 884314, 2022 CCA LEXIS 181 (A.F.
Ct. Crim. App. 25 March 2022) (unpub. op.) (finding
Ramos did not require unanimous court-martial
verdicts).
After considering the remaining two issues, we
find no error that materially prejudiced Appellant's
substantial rights. We affirm the findings and
sentence. 11,12
11. Appellant requested speedy appellate review on 21
December 2021. He repeated that request twice, in two motions
to cite supplemental authority, dated 4 January 2022 and 21
March 2022. This opinion was released within 18 months of
docketing, and we find Appellant received a timely, full, and fair
review of his findings and sentence. See, e.g., United States v.
Arriaga, 70 M.J. 51, 55–56 (C.A.A.F. 2011).
12. In presentencing, the military judge admitted a record of
nonjudicial punishment (NJP). See Article 15, UCMJ, 10 U.S.C.
§ 815; R.C.M. 1001(b)(2) (allowing personnel records to be
introduced in sentencing under regulations of the Secretary
concerned). Appellant received the NJP in December 2013 for a
violation of Article 134, UCMJ, for conduct that was prejudicial
to good order and discipline. Appellant received a suspended
reduction in grade from Airman First Class (E-3) to Airman
Basic (E-1) and a reprimand. After six months, the suspended
punishment was remitted. NJP records may be admitted at a
court-martial if “not over five years old on the date the charges
were referred.” Air Force Instruction 51-201, Administration of
Military Justice, ¶ 12.26.2 (18 Jan. 2019). As referral was 30
March 2020, the admitted NJP was more than six years old. Trial
defense counsel did not object, so we review for plain error. See
United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011). The
military judge made a clear or obvious error in admitting the
2013 NJP. See United States v. Lundby, No. ACM S32500, 2019
WL 1777365 at *__, 2019 CCA LEXIS 181 at *10 (A.F. Ct. Crim.
App. 23 Apr. 2019) (unpub. op.); United States v. Edwards, 39
9a
I. BACKGROUND
Appellant's convictions for wire fraud and
attempted wire fraud arose out of a scheme to trick
three female enlisted Airmen at Hurlburt Field,
Florida, into sending him nude digital photographs of
themselves. Appellant knew the three women—AL,
AW, and GMV—and their phone numbers. Appellant
used this information to carry out his scheme.
In the scheme, Appellant would impersonate one
of the three Airmen using a text messaging
application or fake social media account. Appellant
would state that the message was from a “new” phone
number or account. Once contact was established,
Appellant used information he knew to convince the
targeted Airman that he was the other female
Airman. In time, Appellant would claim the female
Airman he was impersonating had been paid
thousands of dollars to sell nude, lingerie, or similar
photographs to a private subscription magazine.
Appellant would then endeavor to convince the
M.J. 528, 529 (A.F.C.M.R. 1994). Finding clear or obvious error,
we test for prejudice by assessing whether the error substantially
influenced the sentence. See United States v. Griggs, 61 M.J. 402,
410 (C.A.A.F. 2005). Other admitted sentencing exhibits from
Appellant's personnel records included an NJP from January
2019 and an April 2019 vacation of suspended NJP. These two
actions resulted in Appellant being reduced in grade from Senior
Airman (E-4) to Airman First Class (E-3) in January 2019, and
to Airman (E-2) in April 2019. Appellant did not raise this error
or assert prejudice. Considering the convicted offenses before this
court, the properly admitted evidence, and the 2019 NJP and
vacation action offenses, we find the erroneous admission of the
2013 NJP did not substantially influence the military judge's
adjudged sentence. Accordingly, Appellant is not entitled to
relief.
10a
targeted Airman to sign up and send nude photos so
she too could be paid thousands of dollars.
On 1 February 2019, Appellant targeted AL. 13 He
impersonated AW using a text messaging application
and successfully convinced AL to send him digital
photographs, some of which depicted her nude. AL
forwarded Appellant photos she already had on her
phone, but also took and forwarded new photos when
she got home from work. Some of the photos depicted
AL wearing parts of her military uniform. AL also
provided her bank account and routing number at
Appellant's request so she could be paid via electronic
funds transfer. Appellant promised AL she would
receive the funds “tonight” if she provided her full
name, date of birth, and a nickname for the private
magazine to use to identify her. AL provided the
requested information. After receiving the nude
photos and bank information, Appellant sent AL this
message:
Ok so let's cut to the chase. Nudes are illegal in
the military, nudes in uniform are illegal ....
F.Y.I. this is not [AW] [face with laughing tears
emoji] so from now on you do what I say when I
say it or you get exposed to the entire base. I'll
even make a craigslist and tinder of your nudes.
If you tell anyone you go down with me soo keep
that in mind. Now take a deep breath and relax.
You do what your told your pictures are safe ok.
You talk to anyone about this and I hear about
13. By the time of Appellant's trial, AL had separated from
the Air Force.
11a
it your exposed. You ignore me your exposed.
You block me your exposed.[ 14]
From that point, Appellant required that every
text message that AL sent back would call him
“daddy.” When AL did not comply, Appellant stated
that she owed him additional pictures.
After receiving the threat to expose her photos, AL
contacted the real AW and alerted her to the scheme.
AL also notified the local Air Force Office of Special
Investigations (AFOSI) detachment and reported
what had happened. AFOSI agents requested AL
respond to new messages while the AFOSI attempted
to identify who was sending her messages.
Appellant targeted AW a few days after AL. He
sent AW text messages and impersonated AL, stating
that AL had a new phone number. Appellant
attempted to convince AW to provide nude photos to
the private magazine and to disclose her bank account
information. He did not succeed, as AW already knew
about the scheme from AL. AW feigned interest in
providing photos in an attempt to determine who was
messaging her. AW and AL confirmed that the same
phone number messaged each of them.
Also in early February 2019, Appellant targeted
GMV. 15 He impersonated AL by sending GMV a direct
message from a fake social media account that he had
created and populated with photos of AL. Appellant
convinced GMV to text him on a “new” phone number,
the same number he used in the scheme with AL and
14. Quoted messages include misspellings and punctuation
errors that we have not corrected. We made appropriate
modifications using brackets.
15. By the time of Appellant's trial, GMV had separated from
the Air Force.
12a
AW. Appellant attempted to convince GMV to send
him nude photos for the private magazine. GMV, who
was in Montana at the time, thought she was
exchanging messages with the real AL. GMV shared
private information in messages; however, she did not
send any photos. The next day, GMV began to suspect
that someone was impersonating AL. GMV called AL's
boyfriend, who notified the AFOSI. Soon after, AFOSI
agents conducted a phone interview of GMV and she
explained to them what had happened.
About six weeks later, Appellant sent GMV a
message from a different phone number, in which he
threatened to expose her “secret.” The “secret” was the
private information GMV had shared. Appellant
requested a “selfie cutie” or claimed he would tell
“everyone.” GMV responded “Haha, well expose away
b[**]ch ain't nothing I'm hiding.” Appellant
responded, “well see about that.”
Special Agent (SA) CC investigated the case for the
AFOSI. SA CC determined that a North Carolina
company leased the phone number that messaged AL,
AW, and GMV. This company operated a
downloadable texting application. According to SA
CC, this texting application allowed a user to “choose
any number you want or a number will be provided to
you and that number will be different than your own
number so the other person won't know who is texting
you.” SA CC obtained a warrant from a federal
magistrate judge for the records held by the North
Carolina company. This warrant resulted in the
release of a series of Internet Protocol (IP) addresses
used by the phone number. SA CC connected those IP
addresses to an Internet service provider. SA CC
subpoenaed records from the Internet service provider
that showed one IP address was at Appellant's
residence and another matched a location on Hurlburt
13a
Field near Appellant's primary workplace. SA CC also
subpoenaed records related to the fake social media
account of AL and the email address used to create
that account. The email address used AL's name,
though misspelled.
In July 2019, AFOSI agents obtained search
authorization for Appellant's electronic devices.
AFOSI agents seized a cell phone and a tablet. An
initial extraction of Appellant's phone conducted by
the AFOSI revealed the photographs that AL sent on
1 February 2019.
SA CC forwarded Appellant's devices to the
Department of Defense Cybercrime Center (DC3) for
forensic analysis. Mr. BA, a digital forensics expert
who testified at trial, examined Appellant's devices
and their memory cards. Mr. BA testified that
Appellant used an application on his phone that
advertised the ability to password protect and hide
photos and videos. Mr. BA also found a folder related
to this application that contained AL's name, along
with pictures of her. Additionally, the application
utilized a “break-in alert feature,” which took a photo
if the wrong passcode was used to access the
application. The DC3 examination showed one breakin alert from the application; the photo depicted
Appellant.
Other forensic tools showed keywords associated
with AL's name, the fake social media account of AL,
and the email address associated with the fake social
media account of AL. The phone number that
messaged AL, AW, and GMV was also found along
with its username, which was a misspelling of AL's
name. Mr. BA also testified that Appellant's phone
had an application installed that allowed
simultaneous sign-ins to multiple accounts within one
14a
application. On the tablet, Mr. BA found multiple
different email accounts signed in at the same time.
In addition to the above evidence and testimony,
Appellant's civilian supervisor testified. Both
Appellant and his supervisor worked in a different
squadron than AL, AW, and GMV. However, the
supervisor explained that Appellant talked about AL
and AW while at work “the way a guy would talk
about having like a crush on a girl,” and stated that
Appellant “would go out of his way to see them ... if
they were working.”
The court members convicted Appellant of four
offenses related to the scheme. These included: (1)
wire fraud involving AL; (2) communicating a threat
to injure the reputation of AL; (3) attempted wire
fraud involving AW; and (4) attempted wire fraud
involving GMV.
The court members also convicted Appellant of
using marijuana. Two civilian witnesses testified that
they saw Appellant smoking a blunt. One witness
described the blunt as a cigar with the tobacco
removed and replaced with marijuana.
II. DISCUSSION
A. Legal and Factual Sufficiency
1. Additional Background
Before us, Appellant challenges the evidence
supporting his wire fraud and attempted wire fraud
convictions. 16 He quotes recent precedent of the
Supreme Court of the United States that “a property
fraud conviction cannot stand when the loss to the
16. Appellant does not challenge the sufficiency of the
evidence underlying his convictions for communicating a threat
and wrongful use of marijuana.
15a
victim is only an incidental byproduct of the scheme.”
Kelly v. United States, ––– U.S. ––––, 140 S. Ct. 1565,
1573 (2020). He asserts that the scheme was to obtain
copies of photographs—not the original property
itself—that could be used as “non-pecuniary
leverage.” He correctly notes that there was no
evidence that Appellant sold the photos of AL that he
obtained. Appellant also argues that theoretically
depriving victims of reputational value is insufficient
to support a wire fraud conviction.
The Government answers that the evidence was
legally and factually sufficient. It argues that AL had
an exclusive property right in her photos stored on her
phone and that AL gave up that exclusive control
solely due to Appellant's deceitful conduct. According
to the Government, AL trusted the person to whom
she sent the photos to act as an agent to sell the photos
to the private magazine. Instead, Appellant's scheme
resulted in him obtaining the photos of AL for his
personal use.
Appellant replies that the Government's exclusive
property theory is contingent on Appellant depriving
AL of an “intangible right” and the specification
required proof of a scheme to obtain property in the
form of nude photos. 17 Appellant also argues that any
17. Appellant argues in his reply brief that because he was
charged with devising a scheme to obtain nude photographs, and
“not some unalleged intangible right intimately bound up in
these photographs,” he lacked fair notice of the “exclusive rights”
theory—and that this violated his due process right to know
“under what legal theory” he would be convicted. See United
States v. Tunstall, 72 M.J. 191, 192 (C.A.A.F. 2013). Appellant
also argues the Government forfeited the right to make the
“exclusive rights” argument when trial counsel stated
“[Appellant] has not deprived [AL] of the photos” during an
argument on a defense motion pursuant to a R.C.M. 917, which
16a
ambiguity in what “property” is covered by the wire
fraud statute should be resolved in favor of lenity
consistent with Cleveland v. United States, 531 U.S.
12, 25 (2000).
For the attempted wire fraud convictions,
Appellant argues there was insufficient evidence that
either AW or GMV “took, much less sent, Appellant a
picture over which they possessed exclusive control.”
For preexisting photos that AW or GMV may have
possessed, Appellant asserts that the Government
failed to prove that they retained exclusive control
over such photos and had not already distributed
them to another.
For the reasons expressed below, we find
Appellant's wire fraud and attempted wire fraud
convictions both legally and factually sufficient.
2. Law
We review issues of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted). Our assessment of
legal and factual sufficiency is limited to the evidence
produced at trial. United States v. Dykes, 38 M.J. 270,
272 (C.M.A. 1993) (citations omitted).
The test for legal sufficiency of the evidence is
“whether, considering the evidence in the light most
favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a
reasonable doubt.” United States v. Turner, 25 M.J.
324, 324 (C.M.A. 1987) (citation omitted); see also
United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F.
2002). “[I]n resolving questions of legal sufficiency, we
the military judge denied. We find these arguments do not
warrant further discussion or relief. See Matias, 25 M.J. at 361.
17a
are bound to draw every reasonable inference from the
evidence of record in favor of the prosecution.” United
States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)
(citations omitted). As a result, the “standard for legal
sufficiency involves a very low threshold to sustain a
conviction.” United States v. King, 78 M.J. 218, 221
(C.A.A.F. 2019) (internal quotation marks and
citation omitted).
The test for factual sufficiency is “whether, after
weighing the evidence in the record of trial and
making allowances for not having personally observed
the witnesses, [we are ourselves] convinced of the
[appellant]’s guilt beyond a reasonable doubt.”
Turner, 25 M.J. at 325. Our review “involves a fresh,
impartial look at the evidence,” applying “neither a
presumption of innocence nor a presumption of guilt,”
and we “must make [our] own independent
determination as to whether the evidence constitutes
proof of each required element beyond a reasonable
doubt.” Washington, 57 M.J. at 399. “The term
reasonable doubt does not mean that the evidence
must be free from conflict.” United States v. LeBlanc,
74 M.J. 650, 654 (A.F. Ct. Crim. App. 2015) (citing
United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R.
1986)).
For the wire fraud specification involving AL, a
violation of clause three of Article 134, UCMJ, based
on the charge sheet, the Government had to prove
beyond a reasonable doubt that: (1) at the time and
place alleged, Appellant devised a scheme to defraud
AL to obtain property by materially false and
fraudulent pretenses and representations; to wit:
impersonating AW to obtain nude photographs; (2)
that Appellant acted with the intent to defraud; and
(3) in advancing, furthering, or carrying out the
scheme, Appellant transmitted any writing, signal, or
18a
sound by means of a wire communication in interstate
commerce in violation of 18 U.S.C. § 1343, an offense
not capital. See Manual for Courts-Martial, United
States (2019 ed.) (MCM), pt. IV, ¶ 91.b.(3); 18 U.S.C.
§ 1343.
The federal wire fraud statute reads, in pertinent
part:
Whoever, having devised or intending to
devise any scheme or artifice to defraud, or for
obtaining money or property by means of false
or fraudulent pretenses, representations, or
promises, transmits or causes to be transmitted
by means of wire, radio, or television
communication in interstate or foreign
commerce, any writings, signs, signals,
pictures, or sounds for the purpose of executing
such scheme or artifice, shall be fined under
this title or imprisoned not more than 20 years,
or both.
18 U.S.C. § 1343.
“[M]ateriality of falsehood is an element of the
federal mail fraud, wire fraud, and bank fraud
statutes.” Neder v. United States, 527 U.S. 1, 25
(1999). “In general, a false statement is material if it
has a ‘natural tendency to influence, or [is] capable of
influencing, the decision of the decisionmaking body
to which it was addressed.’” Id. at 16 (alteration in
original) (quoting United States v. Gaudin, 515 U.S.
506, 509 (1995)). “[T]he words ‘to defraud’ commonly
refer ‘to wronging one in [her] property rights by
dishonest methods of schemes,’ and ‘usually signify
the deprivation of something of value by trick, deceit,
chicane, or overreaching.’” McNally v. United States,
483 U.S. 350, 358 (1987) (quoting Hammerschmidt v.
United States, 265 U.S. 182, 188 (1924)). The mail
19a
fraud statute “had its origin in the desire to protect
individual property rights.” McNally, 483 U.S. at 358
n.8. The federal wire fraud statute is the “lineal
descendant” of the mail fraud statute. Id. at 374
(Stevens, J., dissenting) (citation omitted).
The federal fraud statutes are “limited in scope to
the protection of property rights” and do not “set[ ]
standards of disclosure and good government for local
and state officials.” Kelly, 140 S. Ct. at 1571 (quoting
McNally, 483 U.S. at 360). Fraud that implicates a
state government's role as a sovereign wielding
traditional police power, rather than its role as
property holder, does not constitute property fraud.
See Kelly, 140 S. Ct. at 1572; see also Cleveland, 531
U.S. at 22–23. A “State's intangible rights of
allocation, exclusion, and control [of video poker
licenses]—its prerogatives over who should get a
benefit and who should not—do not create a property
interest.” Kelly, 140 S. Ct at 1572 (internal quotation
marks and citation omitted).
For the attempted wire fraud specifications
involving AW and GMV, a violation of Article 80,
UCMJ, the Government had to prove beyond a
reasonable doubt that: (1) at the time and place
alleged, Appellant did certain overt acts, inter alia
contacting AW and GMV and attempting to deceive
AW and GMV into sending nude photographs by
impersonating AL; (2) that the acts were done with
the specific intent to commit wire fraud; (3) that the
acts amounted to more than mere preparation; and (4)
that the acts apparently tended to effect the
commission of the intended offense except that AW
and GMV did not send nude photographs to Appellant
which prevented completion of the offense. See MCM,
pt. IV, ¶ 4.b. “A person who purposely engages in
conduct which would constitute the offense if the
20a
attendant circumstances were as that person believed
them to be is guilty of an attempt.” MCM, pt. IV, ¶
4.c.(3) “For example ... a person who reaches into the
pocket of another with the intent to steal that person's
billfold is guilty of an attempt to commit larceny, even
though the pocket is empty.” Id.
For the attempt offenses, the underlying wire
fraud offense that Appellant must have had the
specific intent to commit is similar to the wire fraud
offense involving AL. The only significant differences
are the names of the victims and the name whom
Appellant impersonated.
3. Analysis
a. Wire Fraud – AL
A reasonable factfinder viewing the evidence in the
light most favorable to the Prosecution could have
determined all the essential elements of the wire
fraud offense were proven beyond a reasonable doubt.
The Government presented overwhelming evidence of
Appellant's scheme to defraud AL by impersonating
AW in order to obtain nude photographs of AL.
Appellant used a text messaging application, which
used the Internet, implicating wire communications.
There was sufficient evidence that his messages
moved in interstate commerce between at least
Florida and North Carolina. The only significant
question is whether the photos AL sent to Appellant
were “property” under the wire fraud statute. A
reasonable factfinder could have determined they
were.
Appellant argues that AL only lost a copy of her
photos. This is true in one sense; AL obviously still
had access to the original digital photos. However,
copy or original, Appellant obtained AL's property in
the form of nude photos from his scheme. Simply
21a
because AL retained the original digital photos does
not mean that AL's property loss was only an
“incidental byproduct of the scheme.” See Kelly, 140 S.
Ct. at 1573. AL lost the property right to control the
distribution of her nude photos. AL relinquished this
property right because Appellant convincingly
impersonated AW, falsely represented that the
magazine paid AW, and induced a belief in AL that
she would be paid thousands of dollars in a direct
deposit that night. Finally, Kelly states the “property
must play more than some bit part in a scheme: It
must be an object of the fraud.” Id. (citations omitted).
A reasonable factfinder could have determined that
AL's photos were the object of the fraud. Appellant
stored the pictures of AL on his phone using an
application that hid them. Appellant's civilian
supervisor testified that Appellant showed a “deep
infatuation” for AL, which provides additional support
that the object of his scheme was to obtain nude
photographs of AL. Later, when Appellant thought AL
did not answer his messages properly by calling him
“daddy,” he told her she owed him one thing—more
photos. A reasonable factfinder could conclude that
the scheme was to obtain AL's nude photos, which
were property, and the photos were the object of the
fraud, not merely some intangible non-property right.
Wire fraud convictions have been affirmed in the
federal courts for intangible property. See, e.g.,
Carpenter v. United States, 484 U.S. 19, 26–27 (1987)
(stating “[c]onfidential business information has long
been recognized as property” and “exclusivity is an
important aspect of confidential business information
and most private property”); United States v. Percoco,
13 F.4th 158, 170 (2d Cir. 2021) (endorsing a right to
control theory of wire fraud because “a defining
feature of most property is the right to control the
22a
asset in question”); United States v. Hager, 879 F.3d
550, 554 (5th Cir. 2018) (determining that exclusive
use of proprietary, in-house software qualified as
confidential business information, creating a property
right that was protected by mail and wire fraud
statutes). As the United States Court of Appeals for
the Eleventh Circuit stated, “McNally and Carpenter
teach that the mail and wire fraud statutes do not
protect against fraudulent schemes involving
intangible, non-property, non-monetary rights.”
United States v. Belt, 868 F.2d 1208, 1212–13 (11th
Cir. 1989). The court in Belt found that wire fraud
involving confidential bid information was sufficient
to support a conviction. Id. at 1209–10. In doing so,
the court “acknowledge[d] that convictions which rest
solely on an intangible non-property rights theory
should be vacated.” Id. at 1213 (citations omitted).
The parties have not cited a federal case with a
wire fraud scheme factually identical to Appellant's. 18
While our court has affirmed convictions under clause
three of Article 134, UCMJ, incorporating the federal
wire fraud statute, those cases also did not involve a
scheme like this one. 19 Therefore, Appellant's
challenges appear to raise an issue of first impression.
18. Appellant cites United States v. Condolon, 600 F.2d 7
(4th Cir. 1979). In Condolon, the appellant created a bogus talent
agency to meet and seduce women in a scheme to gratify his
sexual desires. Id. at 8. Condolon does not appear to involve a
scheme with a property interest of nude photographs.
19. See e.g., United States v. Walton, No. ACM 40004, 2022
WL 594151, 2022 CCA LEXIS 133 (A.F. Ct. Crim. App. 28 Feb.
2022) (unpub. op.) (involving a scheme to defraud using
wrongfully accessed social security numbers); United States v.
Gay, 74 M.J. 736 (A.F. Ct. Crim. App. 2015), aff'd, 75 M.J. 264
(C.A.A.F. 2016) (involving a scheme by the appellant to defraud
23a
While the above federal cases involved intangible
property of a business, we see no reason for a different
result when the intangible property belongs to an
individual, like AL. 20 The mail fraud statute, from
which the wire fraud statute originated, “had its
origin in the desire to protect individual property
rights.” See McNally, 483 U.S. at 358 n.8. We also
agree with the United States Court of Appeals for the
Second Circuit that a defining feature of most
property is the right to control the asset. Percoco, 13
F.4th at 170. As the companies in Belt and Hager
suffered a loss of control of their confidential bid
information and proprietary software, AL suffered a
loss of control of her private nude photos. We
distinguish this case from the set-aside convictions in
Kelly or Cleveland. 21 No state or federal sovereign acts
were involved in the property rights in this case. This
case involved AL's individual property right to control
her nude, private photos, which she lost when she
by using victim's personal information to open credit cards in
victim's name).
20. Moreover, to the extent the above cases discuss the
potential economic value of the intangible property at issue,
Appellant's messages to AL, AW, and GMV included a promise
of an economic value of “thousands” of dollars for the photos.
21. See also Blaszczak v. United States, ––– U.S. ––––, 141
S. Ct. 1040 (2021); Olan v. United States, ––– U.S. ––––, 141 S.
Ct. 1040 (2021). The Supreme Court vacated and remanded both
cases to the United States Court of Appeals for the Second
Circuit in light of Kelly. These cases involved “misappropriating
confidential nonpublic information from the Centers for
Medicare & Medicaid Services [(CMS)].” United States v.
Blaszczak, 947 F.3d. 19, 26 (2d Cir. 2019), vacated, –– U.S. ––,
141 S. Ct. 1040 (2021). CMS employees disclosed the agency's
confidential information to a “political intelligence” consultant
who tipped the information to employees of a healthcare focused
hedge fund. Id.
24a
succumbed to Appellant's scheme to defraud. We need
not determine whether AL's property right also
required her to have and then relinquish “exclusive”
control. The specification did not allege that fact and
we find the property interest sufficient without the
“exclusive” label. We conclude the Government was
not required to prove exclusivity as an essential
element of this wire fraud conviction. 22
Drawing every reasonable inference from the
evidence of record in favor of the Government, we
conclude the evidence was legally sufficient to support
Appellant's conviction for wire fraud beyond a
reasonable doubt. Additionally, having weighed the
evidence in the record of trial and having made
allowances for not having personally observed the
witnesses, we are convinced of Appellant's guilt
beyond a reasonable doubt.
b. Attempted Wire Fraud – AW and GMV
Appellant argues there is insufficient evidence
that AW or GMV took or sent him photos over which
they possessed exclusive control, and therefore his
convictions for attempted wire fraud cannot stand. We
disagree and find a reasonable factfinder could
conclude that the Government proved the essential
elements of both specifications of attempted wire
fraud.
22. We do not decide the question of whether depriving a
victim of “reputational value” is a property interest under the
federal wire fraud statute. However, we note that Appellant was
convicted of communicating a threat to injure AL's reputation
under Article 115, UCMJ, 10 U.S.C. § 915. That statute reads,
“Any person subject to this chapter who wrongfully
communicates a threat to injure the person, property, or
reputation of another shall be punished as a court-martial may
direct.” (Emphasis added).
25a
There was overwhelming evidence that Appellant
committed overt acts in an attempt to devise a scheme
where AW and GMV would send him nude photos. A
reasonable factfinder could have concluded that
Appellant's impersonation of AL over a texting
application and a fake social media account, and his
promises to AW and GMV that they would be paid
money, were overt acts designed to deceive AW and
GMV into sending him nude photographs. Similarly,
there was reliable evidence in the messages and the
witness testimony that showed Appellant's specific
intent to commit the offense of wire fraud. A
reasonable factfinder could have concluded the acts
amounted to more than mere preparation and would
have tended to bring about the commission of the
offense of wire fraud.
We find Appellant's challenge that there was
insufficient evidence of preexisting nude photos
misplaced. This is not an element of the charged
attempted wire fraud offenses. As the example in the
MCM provides, a would-be thief who believes a person
has a wallet in their pocket and tries to steal it, but
finds the person's pocket empty, has committed
attempted larceny. It does not matter where the
person's wallet actually is located. It does not matter
whether the person owns a wallet. What matters is
that the would-be thief believes the attendant
circumstances to be that the person has a wallet in
that pocket available for the would-be thief to steal. In
this case, it does not matter whether AW and GMV
had nude photos already taken and available to send
to him as he impersonated AL. What matters is
whether there was legally sufficient evidence that
Appellant believed those attendant circumstances at
the time of the charged offense. Viewing the evidence
in the light most favorable to the Prosecution, a
26a
reasonable factfinder could have determined
Appellant had the requisite specific intent to commit
wire fraud.
Appellant knew AW. He flirted with her,
complimented her appearance, and went out of his
way to visit her workplace. Appellant's civilian
supervisor agreed Appellant could be reasonably
described as having a “deep infatuation” with AW. In
the messages, Appellant asked AW personal questions
and shared some of the photos of AL he received from
his earlier, successful scheme. AW already knew
about the scheme from AL, but AW messaged
Appellant that she was thinking about providing
photos in an attempt to see if more information could
be provided to the AFOSI. Considering the evidence
presented at trial, a reasonable factfinder could have
found Appellant had the requisite specific intent for
the attempted wire fraud offense involving AW.
Appellant also knew GMV. Impersonating AL,
Appellant reached out to GMV on a social media
application that GMV described as a place where “you
can post pictures” and “like each other's pictures or
message each other.” Appellant told GMV that AL
received money from the private magazine and AW
“signed up.” GMV knew AW. Furthermore, GMV
shared private information with Appellant, believing
he was the real AL, and Appellant sent GMV the nude
photos of AL as he tried to convince GMV to sign up
and send him photos. GMV asked questions including
why AL's face was depicted in her photos because
GMV “didn't know ... that the face was going to be in
the picture.” While the evidence did not show that
Appellant had the same infatuation with GMV that he
did with AL and AW, he certainly knew that his
scheme to impersonate AL was working based on the
private information that GMV shared with him. Given
27a
the nature and extent of the messages Appellant
exchanged with GMV and the testimony of the
witnesses, a reasonable factfinder could have
concluded Appellant had the requisite specific intent
to commit wire fraud by obtaining nude photos of
GMV.
Turning to Appellant's “exclusive” control
argument for the attempts, we find it unavailing for
the same reasons we articulated for the wire fraud
offense involving AL. The attempted wire fraud
specifications did not allege the words “exclusive
control” or imply that it was an essential element the
Government had to prove beyond a reasonable doubt.
Drawing every reasonable inference from the
evidence of record in favor of the Government, we
conclude the evidence was legally sufficient to support
Appellant's convictions for attempted wire fraud
involving AW and GMV beyond a reasonable doubt.
Additionally, having weighed the evidence in the
record of trial and having made allowances for not
having personally observed the witnesses, we are
convinced of Appellant's guilt beyond a reasonable
doubt.
B. Preemption
Appellant argues that the wire fraud and
attempted wire fraud specifications were preempted
by Articles 106 and 121, UCMJ, 10 U.S.C. §§ 906,
921. 23 The Government argues that the UCMJ does
23. Appellant raises this assignment of error “in the
alternative” to his other assignments of error. We do not find
Appellant's characterization of alternative assignments of error
useful in this case and we see nothing in Rule 18 of the Joint
Rules of Appellate Procedure for Courts of Criminal Appeals
which permits raising assignments of error in the alternative.
Additionally, we note that Appellant did not list Article 106,
28a
not have a punitive article for wire fraud or a closely
related offense. 24 It also argues Congress did not
intend to occupy the field of fraud through Article 121,
UCMJ, and that wire fraud does not consist of a
residuum of the elements of larceny.
We conclude that Articles 106 and 121, UCMJ, did
not preempt Appellant's wire fraud and attempted
wire fraud convictions under Article 134, clause three,
and Article 80, UCMJ.
1. Law
This court reviews questions of preemption de
novo. United States v. Benitez, 65 M.J. 827, 828 (A.F.
Ct. Crim. App. 2007) (citations omitted). “The
‘preemption doctrine’ limits the general article's
expansive scope, prohibiting ‘application of Article
134 to conduct covered by Article 80 through 132.’”
United States v. Avery, 79 M.J. 363, 366 (C.A.A.F.
2020) (quoting Manual for Courts-Martial, United
States (2012 ed.), pt. IV, ¶ 60.c.(5)(a)); see also MCM,
pt. IV, ¶ 91.c.(5)(a).
In United States v. Kick, our superior court's
predecessor, the United States Court of Military
Appeals, defined the preemption doctrine as the
legal concept that where Congress has occupied
the field of a given type of misconduct by
addressing it in one of the specific punitive
UCMJ, 10 U.S.C. § 906, in this assignment of error, though he
extensively cites it and analyzes it in his brief. We assume the
failure to mention Article 106, UCMJ, in this assignment of error
was an oversight.
24. The Government does not specifically address
preemption under Article 106, UCMJ, in its answer. We will
review whether the preemption doctrine applies under either
UCMJ article.
29a
articles of the code, another offense may not be
created and punished under Article 134,
UCMJ, by simply deleting a vital element.
However, simply because the offense charged
under Article 134, UCMJ, embraces all but one
element of an offense under another article
does not trigger operation of the preemption
doctrine. In addition, it must be shown that
Congress intended the other punitive article to
cover a class of offenses in a complete way.
7 M.J. 82, 85 (C.M.A. 1979) (citations omitted); see
also United States v. Erickson, 61 M.J. 230, 233
(C.A.A.F. 2005).
Accordingly, the preemption doctrine only
precludes prosecution under Article 134, UCMJ,
where two elements are met: “(1) ‘Congress intended
to limit prosecution for ... a particular area’ of
misconduct ‘to offenses defined in specific articles of
the Code,’ and (2) ‘the offense charged is composed of
a residuum of elements of a specific offense.’” United
States v. Curry, 35 M.J. 359, 360–61 (C.M.A. 1992)
(omission in original) (quoting United States v.
McGuinness, 35 M.J. 149, 151–52 (C.M.A. 1992)); see
also United States v. Wright, 5 M.J. 106, 110–11
(C.M.A. 1978). We will “only find a congressional
intent to preempt in the context of Article 134, UCMJ,
where Congress has indicated ‘through direct
legislative language or express legislative history that
particular actions or facts are limited to the express
language of an enumerated article.’” Avery, 79 M.J. at
366 (quoting United States v. Anderson, 68 M.J. 378,
387 (C.A.A.F. 2010)).
“Article 134, UCMJ, expressly permits charging
military members for ‘crimes and offenses not capital’
that are ‘not specifically mentioned’ in the UCMJ, and
which include, inter alia, ‘crimes and offenses
30a
prohibited by the United States Code.’” United States
v. Wheeler, 77 M.J. 289, 291 (C.A.A.F. 2018) (quoting
10 U.S.C. § 934; Manual for Courts-Martial, United
States (2012 ed.), pt. IV, ¶ 60.c.(4)); see also MCM, pt.
IV, ¶ 91.c.(4). It is “indeed permissible to incorporate
violations of noncapital federal crimes through clause
three of Article 134, UCMJ.” Wheeler, 77 M.J. at 293.
It is permissible for the Government to incorporate “a
specific federal statute aimed with precision at a
particular type of intentional conduct with its own
evidentiary burden.” Id. (citing Curry, 35 M.J. at 361).
However, the Government may not turn “to a
hypothetical federal noncapital crime that lessened its
evidentiary burden at trial by circumventing the mens
rea element or removing a specific vital element from
an enumerated UCMJ offense.” Id.
The elements of an Article 106, UCMJ, 10 U.S.C.
§ 906, impersonation offense involving intent to
defraud are: (1) that the accused impersonated an
officer, noncommissioned officer, or petty officer, or an
agent of superior authority of one of the armed forces,
or an official of a certain government, in a certain
manner; (2) that the impersonation was wrongful and
willful; and (3) that the accused did so with the intent
to defraud a certain person or organization in a
certain manner. MCM, pt. IV, ¶ 39.b. The maximum
punishment for this offense is a dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for three years. MCM, pt. IV, ¶ 39.d.(1).
The elements of an Article 121, UCMJ, larceny by
obtaining offense are: (1) that the accused wrongfully
obtained certain property from the possession of the
owner or of any other person; (2) that the property
belonged to a certain person; (3) that the property was
of a certain value, or of some value; and (4) that the
obtaining by the accused was with the intent to
31a
permanently deprive or defraud another person of the
use and benefit of the property or permanently to
appropriate the property for the use of the accused or
for any person other than the owner. MCM, pt. IV, ¶
64.b.(1). The maximum punishment for larceny of
property of a value of $1,000.00 or less is a badconduct discharge, forfeiture of all pay and
allowances, and confinement for one year. MCM, pt.
IV, ¶ 64.d.(1)(a). If the property is non-military and of
a value of more than $1,000.00, the maximum
punishment is a dishonorable discharge, forfeiture of
all pay and allowances, and confinement for five
years. MCM, pt. IV, ¶ 64.d.(1)(c).
As described above, the maximum confinement
term for wire fraud under 18 U.S.C. § 1343 is 20 years.
2. Analysis
a. Article 106, UCMJ
The first step in the preemption analysis is to
determine whether Congress intended to limit
prosecution for all impersonation offenses involving
intent to defraud to Article 106, UCMJ. This requires
assessing the “direct legislative language or express
legislative history” of Article 106, UCMJ. See Avery,
79 M.J. at 366. 25 As Appellant has not cited any
express legislative history, we will focus on the direct
legislative language.
25. “American military law has criminalized ‘impersonating
an officer’ via the ‘General Article’ since the 1775 Articles of
War.” REPORT OF THE MILITARY JUSTICE REVIEW GROUP 789 (22
Dec. 2015) (citation omitted), https://ogc.osd.mil/Portals/99/
report_part1.pdf. Effective 1 January 2019, Congress
implemented
the
Military
Justice
Review
Group's
recommendation to “migrate” the enumerated Article 134 offense
to a punitive article, Article 106, UCMJ. See id. at 790.
32a
Appellant argues that impersonation offenses with
an intent to defraud exclude impersonation of those
enlisted members below the grade of a
noncommissioned officer. We agree with this general
sentiment. We find support in both the plain language
of Article 106, UCMJ, and the enumerated Article 134
offense that criminalized this conduct prior to 1
January 2019. See Manual for Courts-Martial, United
States (2016 ed.), pt. IV, ¶ 86. Additionally, at the time
of Appellant's offenses, neither AL nor AW were
noncommissioned officers in the United States Air
Force (E-5 or above).
However, the specifications in this case are not
mere impersonation offenses. This is not a case where
the Government charged Appellant with a novel
Article 134 offense and removed the noncommissioned
officer element. Instead, the Government charged
wire fraud and attempted wire fraud, where the
impersonation was just part of the scheme to defraud.
We see no evidence that Congress, through direct
legislative language or express legislative history,
intended to legislate Article 106, UCMJ, to
criminalize wire fraud schemes that involve
impersonation as a part of the broader scheme.
Turning to the second step in the preemption
analysis, we find the charged wire fraud and
attempted wire fraud offenses do not compose a
residuum of elements of Article 106, UCMJ. First, the
charged offenses required use of a wire
communication, an essential element. Second, the
wire fraud offense required Appellant to “devise a
scheme” and the attempted wire fraud offenses
required him to commit acts “with the specific intent
to commit wire fraud.” There is no requirement for the
Government to prove a “scheme” or “specific intent to
commit wire fraud,” under Article 106, UCMJ.
33a
We conclude that it was permissible for the
Government to incorporate 18 U.S.C. § 1343, “a
specific federal statute aimed with precision at a
particular type of intentional conduct”—wire fraud—
“with its own evidentiary burden”—use of the wire
communications and a scheme to defraud. See
Wheeler, 77 M.J. at 293. We observe no lowering of the
required mens rea by the Government's use of the wire
fraud statute; both charged offenses and Article 106,
UCMJ, required proof beyond a reasonable doubt of a
specific intent to defraud. Therefore, Appellant's
Article 106, UCMJ, preemption claim must fail.
b. Article 121, UCMJ
Appellant cites two decisions of the Court of
Military Appeals to argue that Congress intended to
limit prosecutions for wrongfully obtaining property
using false pretenses to Article 121, UCMJ. The first
decision stated, “An examination of the legislative
history of Article 121 discloses that it was the clear
intent of Congress to create the single offense of
‘larceny,’ and to abolish the technical distinctions
theretofore existing among the crimes of larceny,
embezzlement, and taking under false pretenses.”
United States v. Antonelli, 35 M.J. 122, 125 (C.M.A.
1992). The second—and earlier—decision stated, “We
are persuaded, as apparently the drafters of the
Manual were, that Congress has, in Article 121,
covered the entire field of criminal conversion for
military law.” United States v. Norris, 8 C.M.R. 36, 39
(C.M.A. 1953).
The Government answers with two points: (1) wire
fraud is not a crime of conversion but one that focuses
on the scheme and the use of wire communications;
and (2) even if Congress originally intended to
consolidate all “criminal conversion offenses,” the
substantial revisions in 2016 show it abandoned that
34a
approach. On its second point, the Government notes
that (1) Article 121a, UCMJ, 10 U.S.C. § 921a,
criminalizes the fraudulent use of credit cards and
debit cards; (2) Article 121b, UCMJ, 10 U.S.C. § 921b,
criminalizes the obtaining of services through fraud;
and (3) Article 124, UCMJ, 10 U.S.C. § 924,
criminalizes frauds against the United States. The
Government also argues that wire fraud does not
consist of a residuum of the elements of larceny.
The first step in our preemption analysis is to
determine whether Congress intended to limit
prosecution for a particular area of misconduct to
offenses defined in specific articles of the UCMJ. As
we see it, the particular area of misconduct in this case
was the scheme to defraud through wire
communications to obtain property. We observe no
“direct legislative language or express legislative
history,” see Avery, 79 M.J. at 366, in the current
version of Article 121, UCMJ, to conclude that
Congress intended to limit wire fraud offenses to
prosecutions under the larceny punitive article.
We acknowledge the statements in Antonelli and
Norris regarding the legislative history of Article 121,
UCMJ. However, neither case involved preemption or
the federal wire fraud statute. 26 We are not persuaded
that Congress intended to limit prosecution for
obtaining property via a scheme to defraud over a wire
communication to Article 121, UCMJ.
Moving to the second step in the preemption
analysis, the charged wire fraud and attempted wire
26. The offense of stealing mail was an enumerated Article
134, UCMJ, offense until 1 January 2019, when it became an
offense under Article 109a, UCMJ, 10 U.S.C. § 909a. See MCM,
pt. IV, ¶ 46; Manual for Courts-Martial, United States (2016 ed.),
pt. IV, ¶ 93.
35a
fraud offenses do not compose a residuum of elements
of Article 121, UCMJ. Under Article 121, UCMJ, there
is no requirement for the Government to prove use of
wire communication, a “devise a scheme” element, or
a “specific intent to commit wire fraud” element.
Additionally, we observe no lowering of the required
mens rea by the Government's use of the wire fraud
statute. The charged offenses and Article 121, UCMJ,
both required proof beyond a reasonable doubt of a
specific intent to defraud.
We also note that the United States Navy-Marine
Corps Court of Criminal Appeals rejected the
argument that the federal bank fraud statute, 18
U.S.C. § 1344, was preempted by Article 121, UCMJ.
See United States v. Tenney, 60 M.J. 838 (N.M. Ct.
Crim. App. 2005). Our sister service court determined
inter alia that the bank fraud statute required the
Government to prove an additional element—that the
appellant defrauded a financial institution—and this
showed there was not a residuum of the elements of
larceny. Id. at 843.
For these reasons, Appellant's Article 121, UCMJ,
preemption claim fails. It was permissible for the
Government to incorporate 18 U.S.C. § 1343, “a
specific federal statute aimed with precision at a
particular type of intentional conduct with its own
evidentiary burden.” See Wheeler, 77 M.J. at 293.
III. CONCLUSION
The findings and sentence as entered are correct in
law and fact, and no error materially prejudicial to the
substantial rights of Appellant occurred. Articles
59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
36a
Accordingly, the
AFFIRMED. 27
findings
and
sentence
are
Senior Judge LEWIS delivered the opinion of the
court, in which Senior Judge POSCH and Judge
ANNEXSTAD joined.
27. The certified transcript omits one Article 39(a), UCMJ,
10 U.S.C. § 839(a), session conducted on 12 August 2020. The
audio recording of this session is contained in the original record
of trial. At this less-than-five-minute session, the military judge
discussed instructions and a government request for judicial
notice. The Government's error in omitting the transcript for
appellate review does not render the record of trial incomplete.
See R.C.M. 1112(b)(1) and (d)(2). Additionally, we note that two
audio recording files of the proceedings were not playable, though
the certified transcript includes those proceedings. Appellant has
not requested correction of the record of trial or claimed material
prejudice. We find correction of the record unnecessary. We find
no prejudice because we were able to perform our Article 66,
UCMJ, 10 U.S.C. § 866, duties using a combination of the
playable audio recordings and the certified transcript.
37a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
WASHINGTON, D.C.
United States,
Appellee
v.
Roberto Aikanoff, Jr.,
Appellant
USCA Dkt. No. 22-0258/AR
Crim. App. No. 20200423
ORDER
On further consideration of the granted issue, 83
M.J. 65 (C.A.A.F. 2022), and in view of United States
v. Anderson, 83 M.J. __ (C.A.A.F. 2023), it is, by the
Court, this 18th day of July, 2023,
ORDERED:
That the decision of the United States Army Court
of Criminal Appeals is hereby affirmed.
For the Court,
/s/
David A. Anderson
Deputy Clerk of the Court
38a
U.S. ARMY COURT OF CRIMINAL APPEALS
UNITED STATES
Appellee
v.
Sergeant First Class Roberto AIKANOFF, Jr.,
United States Army, Appellant
ARMY 20200423
15 June 2022
Headquarters, Fort Drum, Grady J. Leupold, Military
Judge, Lieutenant Colonel Travis W. Elms, Acting
Staff Judge Advocate
For Appellant: Captain Andrew R. Britt, JA; Jonathan
W. Crisp, Esquire (on brief); Jonathan W. Crisp,
Esquire (on reply brief).
For Appellee: Colonel Christopher B. Burgess, JA;
Lieutenant Colonel Craig J. Schapira, JA; Major Mark
T. Robinson, JA; Captain Cynthia A. Hunter, JA (on
brief).
Before
BROOKHART,
PENLAND,
1
ARGUELLES , Appellate Military Judges
and
MEMORANDUM OPINION
ARGUELLES, Judge:
An enlisted panel sitting as a general courtmartial convicted appellant, contrary to his pleas, of
seven specifications of sexual abuse of a child, in
violation of Article 120b, Uniform Code of Military
Justice, 10 U.S.C. § 920b (2019) [UCMJ]. The panel
found appellant not guilty of four specifications of rape
1. Judge Arguelles decided this case while on active duty.
39a
of a child, two specifications of sexual abuse of a child,
and four specifications of attempted rape of a child, in
violation of Articles 120b and 80, UCMJ. The panel
sentenced appellant to a dishonorable discharge,
confinement for twenty years, forfeiture of all pay and
allowances, and reduction to the grade of E-1, all of
which were approved by the convening authority.
This case is now before us for review under Article
66, UCMJ. Appellant raises four assignments of error,
two of which merit discussion but no relief. 2
BACKGROUND
Appellant married the victim's mother in 2012 and
subsequently adopted the victim and her older sister.
Appellant and the victim's mother also had one
daughter together, who was an infant at the time of
the incidents in question. In December of 2016, the
family moved to Fort Drum, and on two separate
occasions in December of 2017 and October of 2018,
appellant's sister moved into the residence with her
three children. During the period when appellant's
sister and her children were living with the family, the
victim shared a room with one of her sisters.
The victim testified that appellant first started to
sexually abuse her when his sister and her kids first
moved in with the family in December of 2017. At that
time, the victim was [redacted] or [redacted]-years-old
and in the fourth grade. The victim testified that on
several occasions appellant got into bed with her in
the morning while she was still asleep and touched
2. We have also given full and fair consideration to
appellant's other assigned errors, as well as the matters
personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be
without merit.
40a
her buttocks, vagina, and chest. The victim also
described how appellant made her touch his penis.
After appellant's sister moved out in February of
2018, and the victim got her own room back, and
appellant continued to climb into bed with her.
Appellant started doing “new things,” to include
pulling down her underwear and shorts in order to
place his penis in her buttocks, and touching her
vagina with his hands. The victim also testified that
appellant inserted his fingers into her vagina and
unsuccessfully tried to place his penis in vagina, and
“would make [her] still grab him and touch him, but
he would make [her] move [her] hand on his [private
area] like an up and down motion.”
The abuse stopped when appellant's sister and her
children returned to the residence in October of 2018,
but started up again in January of 2019 when they
moved out. The victim testified that after she moved
back into her own room for the second time, the sexual
abuse resumed with “mainly just the touching” on her
chest, her private area, and her buttocks, and
escalated to appellant putting his finger in her vagina
and putting his penis on her buttocks in a “faster and
harder” manner.
In June of 2019, the victim confronted appellant
via text message, asking him “I still want to know why
you did what you did.” Appellant responded, “I told
you I was being dumb. So I'm sorry. Like I said it'll
never happen again. I promise you that.” In response
to the victim's subsequent text “I still don't know if i
should tell mom or not,” appellant responded that
“[telling will] be a very bad,” and that “I will lose you,
your sisters, my life, my job, everything ... I am
changing and acting different with all of you.” The
evidence at trial established that appellant deleted
this particular portion of the text message string from
41a
his iPhone, although it still existed on his Apple
Watch.
When asked at trial about the text message
exchange, appellant testified that it was pertaining to
a “wedgie” that he had given the victim earlier that
morning. Appellant's wife, however, testified that he
gave the girls wedgies all the time, and laughed as she
said that she would never report appellant over a
wedgie. Appellant admitted deleting the exchange on
his phone, but claimed that he was just deleting old
texts in order to save space. Notably, however, there
were multiple messages sent both before and after
that were not deleted, and even as it pertained to this
text string, appellant only deleted that specific portion
in which he implored the victim not to say anything to
her mother.
Although he testified at trial that he only sat on
the victim's bed for five to seven seconds each morning
before he left to say goodbye, in his initial interview
with U.S. Army Criminal Investigation Command
(CID) agents, appellant described how he got in bed
with her for five to ten minutes every morning.
Appellant also told CID that sometimes when he got
into bed with the victim he had an erection, which he
referred to as “morning wood.”
At trial, the government also called several of the
victim's teachers, who testified that during the
relevant time period they noticed a marked change in
the victim's demeanor, and observed that she had
started wearing more baggy clothes. Likewise, several
of the victim's friends testified that over the course of
the year her personality changed from outgoing and
happy to withdrawn.
The victim also testified that she felt a liquid
coming from appellant's body every time he came into
42a
her room after February of 2018. Although the
victim's mother testified that she did not wash the
sheets very often, there were no traces of semen
evidence found on any of the victim's bedding.
LAW AND DISCUSSION
A. Appellant's Motion for Mistrial after the
Military Judge's Substitution of a Panel
Member
1. Additional Facts
Shortly after the government examined its last
witness, one of the panel members fell ill and required
immediate medical attention. After determining that
the panel member would not be able to continue, and
with the consent of both the government and the
defense, the military judge excused the ill panel
member for good cause under Rule for Courts-Martial
(R.C.M.) 505(f).
As the excusal dropped the panel below the
mandated one-third enlisted representation, defense
counsel moved for a mistrial. Following extensive
argument by the parties, the military judge denied the
motion for mistrial and instead proceeded to impanel
a new member detailed by the convening authority
following the procedures set forth in Article 29,
UCMJ, and R.C.M. 505, 805, and 912B.
Among other things, the military judge instructed
the new member that he would recall any witnesses
the member wished to question after hearing their
testimony. Over the course of the next two days, and
in the presence of the military judge, appellant and all
counsel, the court reporter played the audio of the
prior proceedings, and the new member viewed all of
43a
the previously admitted exhibits. 3 After hearing the
testimony of all of the government witnesses, the new
member indicated that he had questions for the
victim's mother and older sister, whom the military
judge recalled for that purpose. After the military
judge asked those questions in the presence of all the
panel members, trial on the merits continued with the
defense case.
Appellant now argues that because the new panel
member was not able to observe the government
witnesses as they testified, especially the victim, the
military judge erred in denying his motion for a
mistrial. Appellant does not directly address or raise
a facial constitutional challenge to the statutory
mechanisms that allow for the impaneling of a new
member in the middle of trial. Given his focus on the
Confrontation Clause, and his characterization of the
trial as a “quintessential ‘he said, she said’ case
involving alleged sexual abuse,” we understand this
assignment of error to be an “as applied” challenge to
the constitutionality of Article 29, UCMJ, and the
relevant Rules for Courts-Martial. As we discuss
below, this claim is without merit.
2. Analysis
In pertinent part, R.C.M. 912B states that if a
panel member is excused, there are no alternate
members, and the number of enlisted members is
reduced below one-third of the panel, “the courtmartial may not proceed until the convening authority
details sufficient additional new members.” Likewise,
R.C.M. 505(c)(2)(B) provides that if a member of the
3. It is not clear from the record whether the new member
also listened to the prior Article 39(a), UCMJ, sessions. Given
that neither counsel objected during the playing of testimony, we
need not address this issue.
44a
panel is excused for good cause, a new member may
be detailed if the number of enlisted members is
reduced below one-third of the total membership.
Once the new member is impaneled in the middle
of the trial, R.C.M. 805(d) mandates that “trial may
not proceed unless the testimony and evidence
previously admitted on the merits, if recorded
verbatim, is read to or played for the new member in
the presence of the military judge, the accused, and
counsel for both sides....” Along the same lines, Article
29(f), UCMJ, provides that if new members are
impaneled after the commencement of the trial, “the
trial may proceed with the new members present after
the evidence previously introduced is read or, in the
case of audiotape, videotape, or similar recording, is
played, in the presence of the new members, the
military judge, the accused, and counsel for both
sides.”
As described above, appellant now asserts that the
military judge erred in seating the new member, and
instead should have declared a mistrial following the
stipulated excusal of the original panel member for
good cause. The Court of Appeals for the Armed Forces
(CAAF), however, has repeatedly emphasized that a
mistrial is “an unusual and disfavored remedy,” to be
used only as a “last resort to protect the guarantee for
a fair trial.” See, e.g., United States v. Diaz, 59 M.J.
79, 90 (C.A.A.F. 2003) (citing United States v. Dancy,
38 M.J. 1, 6 (C.M.A. 1993)). Accordingly, we will not
reverse a military judge's ruling on a mistrial “absent
clear evidence of an abuse of discretion.” United States
v. Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009) (citation
omitted).
For the most part, appellant either ignores or gives
short shrift to both the applicable rules and the
seminal CAAF case on point, United States v.
45a
Vazquez, 72 M.J. 13 (C.A.A.F. 2013), choosing instead
to focus more broadly on the Confrontation Clause.
While appellant is correct that one function of the
Confrontation Clause is to ensure that “the finders of
fact evaluate the demeanor of the witnesses,” United
States v. Anderson, 51 M.J. 145, 149 (C.A.A.F. 1999),
the Supreme Court has also consistently held that the
rights expressed in the Confrontation Clause are not
absolute. See, e.g. Chambers v. Mississippi, 410 U.S.
284, 295 (1973); Delaware v. Fensterer, 474 U.S. 15, 20
(1985) (holding the confrontation clause does not
guarantee “cross-examination that is effective in
whatever way, and to whatever extent, the defense
might wish”); Cf. United States v. Beauge, 82 M.J. 157,
No. 21-0183, 2022 WL 627411 at *––––, 2022 CAAF
LEXIS 181 at *22-23 (C.A.A.F. 3 Mar. 2022) (“[O]nly
rules which infringe upon a weighty interest of the
accused and are arbitrary or disproportionate to the
purposes they are designed to serve will be held the
violate the right to present a complete defense.”)
(citing Holmes v. South Carolina, 547 U.S. 319, 32425 (2006) (emphasis in original) (internal quotation
marks and alterations omitted)). Moreover, there is no
dispute that appellant, through counsel, was able to
thoroughly cross-examine each and every witness who
testified against him. See Davis v. Alaska, 415 U.S.
308, 315-16 (1974) (“The main and essential purpose
of confrontation is to secure for the opponent the
opportunity of cross-examination.”) (citing 5 J.
Wigmore, Evidence § 1395, p. 123 (3d ed. 1940))
(emphasis in original).
As noted above, the CAAF addressed a similar
situation in Vazquez, another child sexual abuse case.
In that case, after five of the six government witnesses
(including the victim) testified, the dismissal of one of
the panel members left the panel below the minimum
46a
required quorum. 72 M.J. at 15. After two new
members were impaneled, the military judge had
counsel read the transcripts of the testimony to them
outside the presence of the other members. Id. at 16.
Unlike defense counsel in the case at bar, however,
defense counsel in Vasquez did not object to the
seating of new members, and did not move for a
mistrial. Id. at 15–16.
At the first level of appeal, the Air Force Court of
Criminal Appeals held that the military judge erred
by failing sua sponte to grant a mistrial on the grounds
that the application of R.C.M. 805(d)(1) would result
in a patently unfair trial. Id. Reversing the appellate
court decision, the CAAF held:
[G]iven that Appellee fails to establish that
the procedures Congress determined were
appropriate when a court-martial drops below
quorum mid-trial in Article 29(b), UCMJ, are
unconstitutional as applied to him, the military
judge did not err, let alone abuse his discretion,
in following those procedures in this case.
Id. at 16. Among other things, the CAAF rejected the
lower court's determination that appellant had a
“military due process” right to have panel members
“who have all heard and seen the same material
evidence,” or a Sixth Amendment right to have all
members view a witness's demeanor. Id. at 19.
In so ruling, the CAAF held that that “[t]he Weiss
standard controls Appellee's claim that Article 29(b),
UCMJ, and the procedures to implement it set forth
in R.C.M. 805(d)(1) are unconstitutional as applied to
him,” and that “Appellee has the burden to
demonstrate that Congress’ determination should not
be followed.” Id. at 19. In Weiss v. United States, the
Supreme Court held that when reviewing
47a
Congressional
determinations
involving
“the
framework of the Military Establishment, including
regulations, procedures, and remedies relating to
military discipline,” judicial deference “is at its
apogee.” 510 U.S. 163, 176–77 (1994) (internal
quotations omitted). As such, a petitioner seeking to
challenge the military justice framework established
by Congress must show that “the factors militating in
favor of [the petitioner's interest] are so
extraordinarily weighty as to overcome the balance
struck by Congress.” Id. at 177–78.
Although the CAAF in Vasquez based its decision
on part on the fact that defense counsel had not
objected to seating the new members, it also held on
the record before it that appellant had failed to meet
his burden to show that Article 29, UCMJ, and R.C.M.
805(d)(1) were unconstitutional as applied to him. In
concluding that this framework “sufficiently satisfies
the central concern of the Confrontation Clause,” the
CAAF noted that: (1) each witness testified under oath
and in the presence of four of the final panel members;
(2) appellee had the opportunity to cross-examine
each witness; (3) the verbatim transcript read to the
two new panel members was subject “to rigorous
testing in the context of an adversary proceeding”; and
(4) the presentation of written witness testimony, to
include the reading of a verbatim transcript, “without
any of the members seeing the witness's demeanor, is
both an accepted practice and constitutionally
unremarkable.” Vasquez, 72 M.J. at 20–21 (emphasis
in original).
In this case, not only are the same factors relevant
in Vasquez present, but appellant actually received
more “process” than did the appellant in that case. For
example, in this case the new panel member was able
to listen to a recording of the testimony, as opposed to
48a
just hearing counsel read the transcript. Likewise,
where four of the six panel members in Vasquez were
able to see all of the witnesses testify, in this case
seven of the eight members saw the whole trial.
Moreover, unlike Vasquez, in this case the new panel
member was also able to submit questions to the
witnesses, in the presence of all of the other panel
members, after hearing their recorded testimony.
Appellant, however, argues that because the new
panel member was not able to observe the victim as
she testified, the military judge should have granted
a mistrial. Specifically, appellant asserts that because
this was a “quintessential ‘he said, she said’ case,” the
new panel member's failure to observe the victim as
she testified renders Article 29, UCMJ/R.C.M. 505(b)
unconstitutional as applied to his case. We disagree.
First, all of the deliberating panel members were
able to examine the incriminating text message string
in which appellant told the victim that if she told her
mother what happened he would “lose you, your
sisters, my life, my job, everything.” In addition, all of
the same panel members observed appellant's
testimony, including his dubious explanation of the
text messages, his reasons for deleting them, and his
admission that in the morning he would sometimes lie
down with the victim in her bed while he had an
erection. See United States v. Nicola, 78 M.J. 223, 227
(C.A.A.F. 2019) (“But one risk of testifying, recognized
long ago, is that the trier of fact may disbelieve the
accused's testimony and then use the accused's
statements as substantive evidence of guilt ‘in
connection with all the other circumstances of the
case.’”) (citing Wilson v. United States, 162 U.S. 613,
620–21 (1896)).
In addition, all members of the panel that
ultimately rendered guilty verdicts observed the
49a
government's rebuttal witnesses, to include a CID
agent who testified that appellant admitted during his
initial interview that he got in bed with the victim
every morning for 5-10 minutes (impeaching his
testimony at trial that it was only 5-7 seconds), and
that he would sometimes go to her bed in just shorts
or a robe after having sex with his wife. Finally, all of
the panel members heard appellant's wife testify on
rebuttal that she was aware that he gave his
daughters wedgies, and saw her laughing as she
stated that she would never report him for that
conduct. Moreover, appellant's wife described how
when she confronted appellant, he never said
anything about a wedgie being the root cause of this
incident.
As noted above, although we acknowledge that the
holding in Vasquez relied in small measure on the fact
that there was no objection at trial (which is not the
case here), we nevertheless find that on balance, and
for all of the reasons stated above, appellant has failed
to show that the factors militating in favor of his
interest “are so extraordinarily weighty” as to render
the procedures and framework set forth in Article 29,
UCMJ, and R.C.M. 805 unconstitutional as applied to
his case. As such, because the military judge did not
err in seating the new panel member, it follows that
he also did not abuse his discretion in denying the
defense request for a mistrial. See Vasquez, 72 M.J. at
16 (“[T]he military judge did not err, let alone abuse
his discretion, in following those [Article 29(b), UCMJ]
procedures in this case.”). 4
4. We are cognizant that the standard of review for an
alleged error depends on whether the appellant lodges an
objection at trial. Compare Vasquez, 72 M.J. at 17 (stating the
failure to object renders alleged error subject to plain error
analysis) with United States v. Tovarchavez, 78 M.J. 458, 470
50a
B. Military Rule of Evidence 412
1. Additional Facts
Prior to trial, the defense sought to introduce the
following evidence pertaining to the victim's sexual
behavior
and
predisposition
under
the
“constitutional” exception of Military Rule of Evidence
(Mil. R. Evid.) 412(b)(3): (1) she observed on her iPad
an image of a naked male with an erection; and (2) an
allegation that her fourth-grade classmate texted her
a picture of his exposed penis. Appellant contended
that this evidence would demonstrate that the victim
“had a degree of understanding, engagement, and
participation with sexual activity that may not be
common for other children that are her age,” thus
lending “support to the Defense's theory that these
allegations [were] fabricated.” The defense further
argued that excluding the evidence would “prevent
the Defense from dispelling the factfinder of any
misconceptions they may have about children and
sexual knowledge, and from being able to present a
defense that [the victim] fabricated these allegations.”
In the first incident, while driving home from
Arkansas, the victim's mother found a link to a
website on the victim's iPad. The link appeared to be
open to the welcome page of a pornographic website,
which depicted a nude male with an erect penis. The
victim acknowledged viewing the image, but said that
her cousin used her iPad to access the page. As to this
(C.A.A.F. 2019) (“[B]efore a federal constitutional error [for a
preserved objection] can be held harmless, the court must be able
to declare a belief that it was harmless beyond a reasonable
doubt”) (citing Chapman v. California, 386 U.S. 18, 24 (1967)).
Given our finding that the military judge did not err in the first
instance, however, we need not decide whether the alleged error
was harmless.
51a
incident, the military judge denied the motion, ruling
that “observation of a nude male image, alone, would
not be material, i.e. favorable or vital, to a rebuttal to
the Government's theory particularly where the
Defense materiality argument lacks further
specificity.”
As to the second incident, the victim's mother
testified that she discovered text messages between
the victim and a male, fourth-grade classmate in
which the two used terms of endearment like “baby.”
Both the victim and her mother testified at a pretrial
hearing that they did not see any inappropriate
images on the victim's phone. Appellant's sister,
however, testified that the victim's mother told her
that she had found a “dick picture” on the victim's
phone sent by the victim's fourth-grade “boyfriend.”
Appellant's sister did not, however, observe any such
images on the victim's phone herself, and the victim's
mother testified that she never told Appellant's sister
about any such pictures on her daughter's phone.
In denying the motion to introduce evidence of the
second incident, the trial court based its ruling solely
on Mil. R. Evid. 401 relevance grounds:
A reasonable factfinder would not conclude
that the alleged victim received a nude image
or a “dick picture” from her classmate. The only
testimony suggesting otherwise was elicited
from the Accused's sister.
In fact, [appellant's sister] did not observe
any such image but simply testified that
[victim's mother] had represented to her that
such an image had been exchanged. Even if the
Court accepted the veracity of [appellant's
sister's] testimony, this evidence merely
supports what [victim's mother] may have told
52a
[appellant's sister] but does not otherwise
materially contradict the testimony of [victim's
mother] and [victim] that they did not observe
such an image, [fn: To reach the necessary legal
conclusion, the Court need not resolve this
apparent testimonial contradiction as to what
precisely [victim's mother] told [appellant's
sister].] Either way, the evidence does not
support a finding that the alleged victim
actually received a sexually explicit image from
a classmate. Based upon this dearth of
evidence, the Court need not consider the
remaining prongs of the MRE 412 analysis.
2. Law
Appellant now asserts that the military judge
erred in finding that evidence of the victim's exposure
to the two pornographic images was not admissible
under Mil. R. Evid. 412’s constitutional exception. We
review a military judge's Mil. R. Evid. 412 ruling for
abuse of discretion. United States v. Erikson, 76 M.J.
231, 234 (C.A.A.F. 2017). Military Rule of Evidence
412 limits the admissibility of specified forms of
evidence in sexual offense cases. The rule serves “to
protect victims of sexual offenses from the degrading
and embarrassing disclosure of intimate details of
their private lives while preserving the constitutional
rights of the accused to present a defense.” United
States v. Banker, 60 M.J. 216, 219 (C.A.A.F. 2004).
Military Rule of Evidence 412 provides that evidence
offered to prove that the alleged victim engaged in
other sexual behavior is not admissible in any
proceeding involving an alleged sexual offense unless
it falls within the rule's enumerated exceptions: (1)
evidence that someone other than the accused
committed the assault; (2) evidence of other sexual
behavior between the accused and the victim; or (3)
53a
exclusion of the evidence “would violate the accused's
constitutional rights.” Since Mil. R. Evid 412 is a rule
of exclusion, the party seeking to introduce such
evidence has the burden of establishing by a
preponderance of the evidence the exception under
which the evidence is admissible. Banker, 60 M.J. at
223; Erikson, 76 M.J. at 235. In analyzing
admissibility, the military judge must first determine
whether the evidence is relevant under Mil. R. Evid.
401, and then apply the balancing test under Mil. R.
Evid. 412(c)(3). See Banker, 60 M.J. at 222.
As the CAAF stated in United States v. Ellerbrock,
70 M.J. 314, 318 (C.A.A.F. 2011), “evidence must be
admitted within the ambit of M.R.E. 412(b)(1)(C).
when the evidence is relevant, material, and the
probative value of the evidence outweighs the dangers
of unfair prejudice.” If the evidence is relevant and
material, the military judge applies the Mil. R. Evid.
412 balancing test to determine if the evidence if
“favorable” or “vital” to the defense. Id. at 323. The
final consideration is whether the evidence in the
record supports the inference that the moving party is
relying on. Ellerbrock, 70 M.J. at 319; See also United
States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011).
In Banker, the CAAF held that in applying the Mil.
R. Evid. 412 balancing test the military judge “is not
asked to make a determination if the proffered
evidence is true; it is for the members to weigh the
evidence and determine veracity.” 60 M.J. at 224. In
United States v. Roberts, 69 M.J. 23, 27 (C.A.A.F.
2010), the CAAF similarly held that the military judge
abused his discretion and clearly erred in weighing
and considering the credibility of the conflicting
witnesses as part of his Mil. R. Evid. 412 balancing
test. See also United States v. Cuevas-Ibarra, ARMY
20200146, 2021 WL 2168951, at *––––, 2021 CCA
54a
LEXIS 254, at *11 (Army Ct. Crim. App. 21 May 2021)
(mem. op.) (finding error where “[t]he language of the
military judge's ruling makes it apparent that he
precluded appellant from presenting evidence
regarding complainant's chlamydia because the
military judge did not personally believe chlamydia
was the source of complainant's pain.”).
3. Analysis
With respect to the alleged image sent to the victim
by her fourth-grade boyfriend, it appears that the
military judge improperly considered witness
credibility in conducting his Mil. R. Evid. 412
balancing test. Although the military judge's ruling
included a footnote indicating that he did not resolve
the “apparent testimonial contradiction as to what
precisely [victim's mother] told [appellant's sister],”
the military judge expressly found that “[a]
reasonable factfinder would not conclude that the
alleged victim received a nude image or a ‘dick picture’
from her classmate,” and that “[e]ither way, the
evidence does not support a finding that the alleged
victim actually received a sexually explicit image from
a classmate.”
Assuming that the military judge erred in
erroneously weighing witness credibility, the evidence
nevertheless did not rationally support the defense
fabrication theory. As a result, the military judge
correctly excluded the evidence. See United States v.
Norwood, 81 M.J. 12, 18 (C.A.A.F. 2021) (“[W]e affirm
a military judge's ruling when ‘the military judge
reached the correct result, albeit for the wrong
reason.’”) (quoting United States v. Bess, 80 M.J. 1, 12
(C.A.A.F. 2020)). For the same reason, the military
judge correctly excluded evidence that the victim
observed an image of a nude male on her iPad.
55a
As described above, appellant claims that, because
both of the alleged incidents demonstrated the
victim's prior knowledge of the types of sexual
encounters she claimed to have suffered, they
supported a fabrication defense. First, it is worth
nothing that appellant did not offer any evidence, or
even a theory, as to why the victim would have a
motive to fabricate. Moreover, as we have previously
held, simply stating a theory of relevance is not
sufficient to make the evidence admissible under Mil.
R. Evid. 412. Rather, the “proponent must
demonstrate that the proffered evidence rationally
supports the theory, and that the theory is significant
to the outcome of the case ... [and] that the logical link
between the proffered evidence and the conclusion the
proponent wants the factfinder to draw is more than
remote or speculative.” United States v. Lauture, 46
M.J. 794, 809 (Army Ct. Crim. App. 1997) (citations
omitted); See also Ellerbock, 70 M.J. at 319 (holding
that the purported Mil. R. Evid. 412 evidence must
support the inference on which the moving party is
relying).
In this case, the fact that the victim may have seen
one or two images of a naked adult male with an
erection is far too speculative to support the premise
that she had sufficient prior knowledge to fabricate
her explicit descriptions of appellant's sexual
assaults. Likewise, and for the same reason, this
evidence does not rationally support the defense
theory that the victim “had a degree of understanding,
engagement, and participation with sexual activity
that may not be common for other children that are
her age.” Finally, the evidence in question also fails to
corroborate or otherwise make appellant's “wedgie”
story more believable. See United States v. Clarke,
NMCCA 201400416, 2015 WL 7720175, at *5, 2015
56a
CCA LEXIS 533, at *17 (N.M. Ct. Crim. App. 30 Nov.
2015) (“Although the appellant's claim that [the
victim] orally sodomized him against his wishes is
certainly incredible, evidence his teenage victim
privately masturbated, had watched some unspecified
pornography, or was sexually active, does nothing to
make his story more believable.”).
As such, because appellant failed to meet his
burden to show that the proffered evidence was
admissible under Mil. R. Evid. 412, we affirm the
military judge's ruling excluding this evidence. See
Roberts, 69 M.J. at 27–28 (“Although we assume that
[ ] testimony was true, its speculative nature when
combined with the improbability of the underlying
purpose for the admission of the evidence, leads us to
conclude that the proffered testimony had minimal
probative value.”).
CONCLUSION
Having considered the entire record, the findings
and sentence are AFFIRMED.
Senior Judge BROOKHART and Judge PENLAND
concur.
57a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
WASHINGTON, D.C.
United States,
Appellee
v.
Nicholas J. Apgar,
Appellant
USCA Dkt. No. 22-0226/AR
Crim. App. No. 20200615
ORDER
On further consideration of the granted issue, 83
M.J. 21 (C.A.A.F. 2022), and in view of United States
v. Anderson, 83 M.J. __ (C.A.A.F. 2023), it is, by the
Court, this 18th day of July, 2023,
ORDERED:
That the decision of the United States Army Court
of Criminal Appeals is hereby affirmed.
For the Court,
/s/
David A. Anderson
Deputy Clerk of the Court
58a
UNITED STATES ARMY
COURT OF CRIMINAL APPEALS
Before WALKER, EWING, and PARKER
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 NICHOLAS J. APGAR,
United States Army, Appellant
ARMY 20200615
Headquarters, Fort Drum
Teresa L. Raymond and James Barkei, Military
Judges
Colonel Robert C. Insani, Staff Judge Advocate
For Appellant: Colonel Michael C. Friess, JA; Major
Rachel P. Gordienko, JA; Captain Lauren M. Teel, JA
(on brief); Lieutenant Colonel Dale C. McFeatters, JA;
Captain Lauren M. Teel, JA; Captain Julia M.
Farinas, JA (on reply brief).
For Appellee: Colonel Christopher B. Burgess, J A;
Lieutenant Colonel Craig J. Schapira, JA; Major Mark
T. Robinson, JA; Captain Cynthia A. Hunter, JA (on
brief).
10 May 2022
DECISION
Per Curiam:
On consideration of the entire record, including
consideration of the issues personally specified by the
appellant, we hold the findings of guilty and the
sentence, as entered in the Judgment, correct in law
and fact. Accordingly, those findings of guilty and the
sentence are AFFIRMED.
59a
For the Court,
[signature]
JAMES W. HERRING, JR.
Clerk of Court
60a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
WASHINGTON, D.C.
United States,
Appellee
v.
Mitchell A. Bentley,
Appellant
USCA Dkt. No. 23-0038/AR
Crim. App. No. 20210181
ORDER
On further consideration of the granted issue, 83
M.J. 142 (C.A.A.F. 2022), and in view of United States
v. Anderson, 83 M.J. __ (C.A.A.F. 2023), it is, by the
Court, this 18th day of July, 2023,
ORDERED:
That the decision of the United States Army Court
of Criminal Appeals is hereby affirmed.
For the Court,
/s/
Malcolm H. Squires, Jr.
Clerk of the Court
61a
UNITED STATES ARMY
COURT OF CRIMINAL APPEALS
Before BROOKHART, PENLAND, and
ARGUELLES 1
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant Mitchell A. BENTLEY
United States Army, Appellant
ARMY 20210181
Headquarters, U.S. Army Africa/Southern European
Task Force
Kenneth W. Shahan, Military Judge
Colonel Erik L. Christiansen, Staff Judge Advocate
For Appellant: Captain David D. Hamstra, JA; Peter
Kageleiry, Jr. , Esquire (on brief); Peter Kageleiry, Jr.,
Esquire (on reply brief).
For Appellee: Colonel Christopher B. Burgess, JA;
Lieutenant Colonel Jacqueline J. DeGaine, JA;
Captain Timothy R. Emmons, JA; Mr. Jackson B.
Kitchin (on brief).
4 October 2022
DECISION
Per Curiam:
On consideration of the entire record, we hold the
findings of guilty and the sentence, as entered in the
Judgment, correct in law and fact. Accordingly, those
findings of guilty·and the sentence are AFFIRMED.
1 Judge Arguelles decided this case while on active duty.
62a
For the Court,
[signature]
JAMES W. HERRING, JR.
Clerk of Court
63a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
WASHINGTON, D.C.
United States,
Appellee
v.
Brian C. Docilet,
Appellant
USCA Dkt. No. 22-0284/AR
Crim. App. No. 20200358
ORDER
On further consideration of the granted issue, 83
M.J. 132 (C.A.A.F. 2022), and in view of United States
v. Anderson, 83 M.J. __ (C.A.A.F. 2023), it is, by the
Court, this 18th day of July, 2023,
ORDERED:
That the decision of the United States Army Court
of Criminal Appeals is hereby affirmed.
For the Court,
/s/
David A. Anderson
Deputy Clerk of the Court
64a
UNITED STATES ARMY
COURT OF CRIMINAL APPEALS
Before BROOKHART, PENLAND, and
ARGUELLES *
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class Brian C. DOCILET
United States Army, Appellant
ARMY 20200358
Headquarters, 82d Airborne Division
Fansu Ku, Military Judge
Colonel James A. Bagwell, Staff Judge Advocate
For Appellant: Colonel Michael C. Friess, JA;
Lieutenant Colonel Dale C. McFeatters, JA; Major
Joyce C. Liu, JA; Captain Carol K. Rim; JA (on brief),
Colonel Michael C. Friess; JA, Lieutenant Colonel
Dale C. McFeatters; JA, Jonathan F. Potter, Esquire;
Major Julia M. Farinas, JA; Captain Carol K. Rim, JA
(on reply brief).
For Appellee: Colonel Christopher Burgess, JA;
Lieutenant Colonel Craig J. Schapira, JA; Major
Pamela L. Jones, JA; Captain Andrew M. Hopkins, JA
(on brief)
18 July 2022
DECISION
Per Curiam:
* Judge Arguelles decided this case while on active duty.
65a
On consideration of the entire record, including
consideration of the issues personally specified by the
appellant, we hold the findings of guilty and the
sentence, as entered in the Judgment, correct in law
and fact. Accordingly, those findings of guilty·and the
sentence are AFFIRMED.
For the Court,
[signature]
JAMES W. HERRING, JR.
Clerk of Court
66a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
WASHINGTON, D.C.
United States,
Appellee
v.
Cory M. Garrett,
Appellant
USCA Dkt. No. 23-0050/AR
Crim. App. No. 20210298
ORDER
On further consideration of the granted issue, 83
M.J. 184 (C.A.A.F. 2022), and in view of United States
v. Anderson, 83 M.J. __ (C.A.A.F. 2023), it is, by the
Court, this 18th day of July, 2023,
ORDERED:
That the decision of the United States Army Court
of Criminal Appeals is hereby affirmed.
For the Court,
/s/
Malcolm H. Squires, Jr.
Clerk of the Court
67a
U.S. ARMY COURT OF CRIMINAL APPEALS
UNITED STATES
Appellee
v.
Staff Sergeant Cory M. GARRETT,
United States Army, Appellant
ARMY 20210298
21 October 2022
Headquarters, U.S. Army Maneuver Center of
Excellence, Trevor I. Barna, Military Judge, Colonel
Javier E. Rivera, Staff Judge Advocate
For Appellant: Captain Ian P. Smith, JA; Michael B.
Hanzel, Esquire; Philip D. Cave, Esquire (on brief and
reply brief).
For Appellee: Colonel Christopher B. Burgess, JA;
Captain R. Tristan De Vega, JA; Lieutenant Colonel
Jaired D. Stallard, JA (on brief).
Before
BROOKHART,
PENLAND,
ARGUELLES 1, Appellate Military Judges
and
MEMORANDUM OPINION
BROOKHART, Judge:
An enlisted panel sitting as a general courtmartial convicted appellant, contrary to his pleas, of
one specification of assault consummated by a battery
on a spouse, one specification of aggravated assault on
a spouse, one specification of assault with a loaded
firearm on a spouse, and one specification of
communicating a threat, in violation of Articles 115
1. Judge Arguelles decided this case while on active duty.
68a
and 128, Uniform Code of Military Justice, 10 U.S.C.
915 and 928 (2019) [UCMJ].
Appellant elected to be sentenced by a military
judge who sentenced appellant to be reduced to the
grade of E-1, to be confined for four years, and to be
discharged from the service with a bad-conduct
discharge. The convening authority took no action.
Appellant raises one assignment of error before this
court and personally asserts three further issues
pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). We grant no relief but find that one of
the issues personally raised by appellant merits
discussion.
BACKGROUND
Appellant met [Redacted] while they were both in
high school and began dating in 2009 while appellant
was in the Army pending deployment to Iraq. In
March of 2011, appellant and [Redacted] were
married over Skype while appellant was deployed.
Unfortunately, their relationship became tumultuous
almost as soon as appellant returned from the
deployment. A violent interaction with appellant
during this timeframe prompted [Redacted] to leave
appellant and go to live with her parents in another
state. Shortly after she left, [Redacted] learned that
she was pregnant and agreed to move back with
appellant at Fort Campbell, Kentucky.
Their daughter, [Redacted] was born at Fort
Campbell in the spring of 2012. Despite the birth of
their first child, the relationship remained volatile
and was marked by further incidents of violence
including one in which appellant waved a firearm
around while arguing with [Redacted] in their car.
Based on this incident, [Redacted] was granted an
order of protection and again separated from
69a
appellant. Sometime later, appellant and [Redacted]
reunited and had a second child.
In March of 2018, [Redacted] purportedly found a
receipt for condoms in appellant's car. An argument
ensued which ended with appellant choking
[Redacted] and pushing her to the floor. [Redacted]
again left to stay with her parents, but the couple
eventually got back together again and moved to Fort
Benning, Georgia. On March 1, 2019, [Redacted]
reportedly told appellant she was pregnant with a
third child, however, appellant became upset because
he did not believe he was the father due to their
separation. Appellant allegedly punched [Redacted] in
the neck and threatened to kill her while arguing
about the pregnancy. 2
Two days later on March 3, 2019, appellant was
drinking and still upset about [Redacted] pregnancy
because he believed she had had an affair. Appellant
pushed [Redacted] up against wall with his hand on
her throat. He then poked her in the chest with a
loaded firearm and made threats to kill her. At some
point during this assault, [Redacted] who was then
approximately seven years old, came into the room
and asked what was happening. Appellant ceased his
conduct and [Redacted] left the room to put [Redacted]
to bed.
[Redacted] then went into the master bedroom
only to be followed by appellant. There appellant, still
armed with a handgun, interrogated [Redacted] about
her purported affair, demanding to know “her truths.”
When [Redacted] admitted to having an affair,
appellant struck [Redacted] in the mouth with his
2. Appellant was found not guilty of Specifications 1 and 2 of
Charge II which encompassed these two incidents.
70a
hand, causing her lip to bleed. [Redacted] again came
into the room and interrupted the assault. [Redacted]
then left the room to take care of the child and
appellant's assault ended for good.
Following this assault, the couple separated one
final time. Although separated, they frequently
exchanged text messages and spoke on the phone. The
text exchanges were often mutually friendly and
many contained sexually suggestive content of the
sort one might expect from a couple in a relationship.
On one occasion while formally separated, they met in
a hotel and had sexual intercourse, which [Redacted]
later discussed favorably over text messages. During
this timeframe, [Redacted] also recorded two phone
conversations with appellant with the apparent
purpose of securing evidence to aid her case in the
divorce.
Despite their sometimes friendly interactions,
[Redacted] moved forward with the divorce, citing
appellant's abuse as the principal grounds. However,
she never reported any of appellant's misconduct to
law enforcement or appellant's chain of command. The
criminal conduct only came to light when a civilian
process server came on Fort Benning to serve the
divorce papers on appellant. The process server was
mistaken for a suspect in an unrelated arson
investigation and detained by members of the Army
Criminal Investigation Command (CID). The agents
who detained the process server also went through the
documents he was carrying. In reviewing the divorce
documents filed by [Redacted] the investigators noted
the allegations of physical abuse against appellant
and initiated an investigation, eventually leading to
the charges at issue.
At trial, [Redacted] was the primary witness for
the government, describing her up and down
71a
relationship with appellant and supplying the
necessary details of the charged assaults. [Redacted]
who was nine years old at the time of trial, also
testified for the government. Although lacking in
significant detail, [Redacted] described two occasions
where she walked in on her parents fighting; one
where she saw appellant hit [Redacted] and one where
appellant had a gun and threatened to kill [Redacted]
This testimony generally lined up with two of the
incidents described by [Redacted] The government
also introduced the recordings of the two phone calls
between appellant and [Redacted] which contained
admissions by appellant. Although the admissions
were not specific to any particular event, they did
provide evidence, by his own admission that he was
physically abusive. Moreover, at no point during the
recorded calls did appellant ever deny physically
abusing [Redacted] even when directly accused. The
government's only other witness of note was a mental
health expert who testified generally about
counterintuitive behaviors of victims of intimate
partner abuse.
Appellant's defense relied mostly on crossexamination of [Redacted] attacking multiple
inconsistencies in her prior statements and exploiting
the text messages and other interactions suggesting
she was not afraid of appellant. Defense also
suggested
that
[Redacted]s
testimony
was
manipulated by [Redacted] as part of her design to get
custody of the children. Appellant testified on his own
behalf and uniformly denied all of the accusations
against him. He also provided innocuous explanations
for the potentially damning admissions in the two
recorded phone calls, although admitting at one point
that he was mentally abusive. Appellant called the
social worker who conducted a recorded forensic
72a
interview of [Redacted] to lay the foundation for
admitting the recording itself. The defense also called
several witnesses to attest to [Redacted]s poor
character for truthfulness. Finally, appellant's expert
testified about child witnesses and how their
testimony could be manipulated. The government did
not present any rebuttal evidence.
Appellant was found guilty of three instances of
assault against his spouse as well as communicating
a threat. He elected to be sentenced by the military
judge. Appellant submitted post-trial matters to the
convening authority who granted no relief. In his lone
assignment of error, appellant avers that all of his
convictions are both legally and factually insufficient.
We disagree.
LAW AND DISCUSSION
A. The Legal and Factual Sufficiency of the
Charges
As appellant asserts, there were inconsistencies in
[Redacted] testimony and also evidence that she at
times interacted with appellant in ways that were
counterintuitive for a victim of intimate partner
abuse. Nonetheless, based on all the testimony and
evidence taken in a light most favorable to the
government, we are satisfied that a reasonable
factfinder could have found [Redacted] testimony
credible and likewise could have found all of the
essential elements of each specification beyond a
reasonable doubt. United States v. Rosario, 76 M.J.
114, 117 (C.A.A.F. 2017). Moreover, consistent with
our obligation pursuant to Article 66, UCMJ, we have
weighed all of the evidence in the entire record of trial
ourselves and having made the appropriate
allowances for not having observed the witnesses, we
are also convinced of appellant's guilt for each
73a
specification beyond a reasonable doubt. United
States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). Accordingly, appellant's assignment of error is
denied.
B. Unlawful Command Influence
1. Additional Facts
This, however, does not end our inquiry. Beyond
any assigned errors, we are also obligated to review
those matters personally submitted by appellant.
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
We find one of those matters bears our comment, but
no relief. In one of three personally raised errors,
appellant avers that the disposition of charges against
him was affected by unlawful command influence
because LTC C, who served as accuser in appellant's
case, had been previously exposed to a superior
commander's opinion that a court-martial was
appropriate.
The record revealed that at some point during the
investigation, appellant's brigade commander, COL P,
who served as the special court-martial convening
authority, communicated with the lead investigator
via an email and indicated that appellant would
“receive courts Marshall [sic] depending if your
specific findings include rape. Otherwise UCMJ.” The
email exchange was included in the case file. The
agent also paraphrased the email exchange in the case
agent notes indicating COL P “would seek a court[]martial for the offenses against SSG Garrett.” The
entire case file was later presented to LTC C,
appellant's battalion commander, to review along
with a charge sheet and the trial counsel's
recommendation to prefer charges to be tried at a
general court-martial. Acting as accuser, LTC C then
preferred charges against appellant.
74a
After charges were preferred, appellant's case was
reviewed by a preliminary hearing officer appointed
by COL P pursuant to Article 32, UCMJ. The
preliminary hearing officer determined probable
cause existed for all of the charges and specifications.
He also recommended trial by general court-martial
for all of the charges and their specifications.
Following the preliminary hearing, COL P also
recommended referral of the charges to a general
court-martial. The General Court-Martial Convening
Authority, consistent with the recommendation of the
preliminary hearing officer and the advice of his Staff
Judge Advocate, referred all the charges and
specifications to a general court-martial.
Prior to trial, appellant moved the judge to dismiss
the charges and their specifications based upon
unlawful command influence. Both parties submitted
briefs on the issue and the military judge conducted
an Article 39(a) session at which LTC C testified that
he “read all the evidence that was presented to me”
before preferring charges. He also testified that he
could not recall every page. To that end, he denied
noticing the disposition recommendations of COL P in
the investigative file. He further denied, under oath,
being influenced or pressured in any way to prefer
charges against appellant and indicated that the
decision to do so was his alone.
In making his ruling, the military judge issued
detailed findings of fact, which we adopt. See United
States v Villareal, 52 M.J. 27, 30 (C.A.A.F. 1999) (our
superior court accepting the military judge's detailed
findings of fact for their de novo analysis). The
military judge found that LTC C credibly testified that
he did not see the disposition information in the case
file and therefore could not have been improperly
influenced by it. He ruled that COL P's comments
75a
about disposition, which found their way into the CID
case file, were not directive, but rather indicated only
a likely course of action dependent upon further
information. As such, the military judge ruled that the
disposition information in the file could not have
constituted unlawful influence. Finally, the military
judge ruled that even if LTC C had seen the
disposition recommendation from COL P, appellant
suffered no prejudice because the preliminary hearing
officer made an intervening finding of probable cause
and an independent recommendation to refer the case
to a general court-martial. Accordingly, the military
judge denied appellant's motion to dismiss for
unlawful command influence.
2. A Brief History of Unlawful Command
Influence
The military justice system by its nature serves
both as a tool for commanders to promote good order
and discipline, which is critical for fighting and
winning the nation's wars, and also as a system of
justice delivering the protections of due process to
those servicemembers who encounter it. Manual for
Courts-Martial, United States (2019 ed.) [MCM],
Preamble. These two distinct purposes are often at
odds because, in order to prepare for and successfully
carry out their military mission, commanders must
exercise near absolute authority over all aspects of
their subordinates’ lives. Parker v. Levy, 417 U.S. 733,
743-44 (1974) (“An army is not a deliberative body ...
[i]ts law is that of obedience. No question can be left
open as to the right to command in the officer, or the
duty of obedience in the soldier.” (quoting In re
Grimley, 137 U.S. 147, 153 (1890)). However, when it
comes to utilizing the military justice system,
commanders must cede some measure of their
authority to the rules, processes, and personnel
76a
composing the system. Burns v. Wilson, 346 U.S. 137,
140 (1953) (the rights of service members must be
balanced against the necessity of discipline and duty);
see also A Bill to Unify, Consolidate, Revise, and
Codify the Articles of War, the Articles for the
Government of the Navy, and the Disciplinary Laws of
the Coast Guard, and to Enact and Establish a
Uniform Code of Military Justice: Hearing on H.R
2498 Before the Subcomm. No. 1 of the H. Comm. on
Armed Servs., 81st Cong. 606 (1949) [hereinafter
House UMCJ Hearings] (statement of Prof. Edmund
Morgan) (“We, therefore, aimed at providing functions
for command and appropriate procedures for the
administration of justice. We have done our best to
strike a fair balance.”). Accordingly, unlike most
aspects of their commands, commanders cannot
simply direct justice. Out of the inherent tension
arises the threat of unlawful command influence,
wherein a commander, or one possessing the mantle
of command authority, improperly uses that authority
to directly or indirectly manipulate the military
justice system towards a particular result. United
States v. Boyce, 76 M.J. 242, 247 (C.A.A.F. 2017);
United States v. Kitts, 23 M.J. 105, 108 (C.M.A. 1986)
(citing United States v. McClain, 22 M.J. 124 (C.M.A.
1986)) (a staff judge advocate generally has the
mantle of command authority).
Unlawful command influence has long been
recognized as the mortal enemy of military justice.
United States v. Thomas, 22 M.J. 388, 393 (C.M.A.
1986). So dangerous is its impact that as early as
1948, Congress established a procedural bar through
The Elston Act, directly prohibiting convening
authorities from taking adverse action against a
member of a court-martial for their participation in a
court-martial, and also any attempts to coerce or
77a
unlawfully influence members of a court or a
reviewing authority. The Selective Service Act of
1948, Pub. L. No. 80-759, § 233, 62 Stat. 604, 639
(1948). With some additions, the same prohibition was
later added to the Uniform Code of Military Justice as
Article 37. Over time, our superior court expanded the
legislative prohibition on unlawful command
influence by creating a doctrine known as apparent
unlawful command influence, which addresses those
actions by commanders which by their appearance
alone could cause the public to lose faith in the
fairness of the military justice system regardless of
whether the challenged action had any concrete
impact on a given case. See generally Boyce, 76 M.J. at
247 (discussing the evolution of apparent unlawful
command influence).
3. Congress Makes Changes to Unlawful
Command Influence in 2020
In 2020, Congress significantly amended Article
37, UCMJ. National Defense Authorization Act for
Fiscal Year 2020, Pub. L. No. 116-92, § 532, 133 Stat.
1359-61 (2019). The amendments were effective at the
time of appellant's court-martial and will be applied
to our review. NDAA 2020 § 532(c). The revised
statute maintains its predecessor's prohibition on
censuring, reprimanding, or admonishing members of
the court, as well as its ban on reflecting court-martial
service or advocacy in a member's performance
evaluations. NDAA 2020 § 532(a)(2). It also provides
greater guidance on what actions commanders can
take that do not constitute unlawful command
influence, such as discussing crimes generally and
discussing general matters to consider in disposing of
cases. The new statute also allows subordinate
commanders to seek non-directive guidance from their
superiors on the disposition of specific cases with the
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limitation that a superior commander cannot direct a
particular disposition. These changes reflect
permissible practices that have evolved overtime
through case law interpreting the prior version of
Article 37. See generally Colonel James F. Garrett,
Colonel Mark “Max” Maxwell, Lieutenant Colonel
Matthew A. Calarco, Major Franklin D. Rosenblatt,
Article, Lawful Command Emphasis: Talk Offense,
Not Offender; Talk Process, Not Results, The Army
Lawyer, August 2014, at 4. However, not all of the
changes to Article 37 were so innocuous; two appear
to limit previously recognized protections against
unlawful command influence.
Pertaining to actual unlawful command influence,
section (a)(3) adds qualifying “attempt to” language to
the existing prohibition on influencing the action of a
court-martial. 3 The relevant section of Article 37 now
reads, “[no] person subject to this chapter may
attempt to coerce or, by any unauthorized means,
attempt to influence the action of a court-martial or
any other military tribunal or any member thereof, in
reaching the findings or sentence in any case....”
(emphasis added). The addition of the attempt
language before “influence” may have been a
legislative response to an interpretation of the former
3. “(a) No authority convening a general, special, or
summary court-martial, nor any other commanding officer, may
censure, reprimand, or admonish the court or any member,
military judge, or counsel thereof, with respect to the findings or
sentence adjudged by the court, or with respect to any other
exercise of its or his functions in the conduct of the proceeding.
No person subject to this chapter may attempt to coerce or, by
any unauthorized means, influence the action of a court-martial
or any other military tribunal or any member thereof, in reaching
the findings or sentence in any case, or the action of any
convening, approving, or reviewing authority with respect to his
judicial acts.” Article 37(a), UCMJ (2019).
79a
version of Article 37 by our superior court which held
that the “attempt to” language preceding “coerce”
served as a scienter requirement, meaning that a
commander had to intend to coerce the action of a
court-martial. United States v. Barry, 78 M.J. 70, 78
(C.A.A.F. 2018). However, CAAF further held that the
“attempt to” language did not apply to the following
clause prohibiting “influence” such that a commander
could violate the statute by unintentionally
influencing the action of a court-martial. Id. at 78-9.
The court then dismissed Barry's conviction with
prejudice based upon the unintentional acts of a
senior officer towards the convening authority over
Barry's court-martial. Id. at 79. The language added
by Congress would prohibit that result in future cases.
The second, and potentially more impactful,
change pertains to apparent unlawful command
influence, and is found in paragraph (c) of the new
statute which states that “[n]o finding or sentence of
a court-martial may be held incorrect on the ground of
a violation of this section unless the violation
materially prejudices the substantial rights of the
accused.” This change significantly impacts the
judicially created doctrine of apparent unlawful
command influence which does not require a showing
of prejudice in a given case as a prerequisite for relief.
By premising relief on a demonstration of material
prejudice to a substantial right of an accused,
Congress has arguably eliminated apparent unlawful
command influence as a potential source or relief. 4
4. See Boyce, 76 MJ at 250 fn. 8 (the right to a trial that is
objectively seen as fair has constitutional dimensions); see also
Rachel E. VanLandingham, Ordering Injustice: Congress,
Command Corruption of Courts-Martial, and the Constitution,
49 Hofstra Law Rev. 211–40 (1 September 2020) (discussing
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4. Analysis
Claims of unlawful command influence are
reviewed de novo. United States v Salyer, 72 M.J. 415,
423 (C.A.A.F. 2013) (citing United States v Harvey, 64
M.J. 13, 19 (C.A.A.F. 2006); United States v. Villareal,
52 M.J. 27, 30 (C.A.A.F. 1999); United States v.
Wallace, 39 M.J. 284, 286 (C.M.A. 1994)). To make a
claim of unlawful command influence, appellant must
allege acts which, if true, would constitute unlawful
command influence and that such acts have a logical
connection to potential unfairness in the courtmartial. United States v. Reed, 65 M.J. 487, 488
(C.A.A.F. 2008) (citing United States v Biagase, 50
M.J. 143, 150 (C.A.A.F. 1999)). The burden then shifts
to the government to demonstrate either that the facts
as alleged are not true, the facts as alleged do not
constitute unlawful command influence, or even if
there was unlawful command influence, it did not
result in materially prejudice to appellant. Id.;
Biagase at 150.
In personally raising matters before this court,
because appellant does not argue that the facts of his
case constitute apparent unlawful command
influence, that issue is not before us. It follows then
that the question of whether apparent unlawful
command influence survives Congresses’ passing the
amended version of Article 37 is also not before this
court. Accordingly, the answer to that question will
have to wait until another day.
With respect to his actual unlawful command
influence claim, appellant alleged that LTC C, a
subordinate convening authority, was improperly
command influence and the interplay between military courts,
congress, and the constitution).
81a
influenced by being exposed to the disposition decision
of his superior commander recorded in a law
enforcement report. We agree that this constitutes a
minimal showing of unlawful command influence
necessary to shift the burden to the government.
However, we find the government successfully
rebutted the allegation by showing that the facts as
alleged were simply not true. As noted by the military
judge, the information in the CID file does not contain
a final disposition decision by COL P. Rather, when
taken together, the email and note recorded by the
agent reflect only a possible course of action
contingent upon further information. Moreover, LTC
C testified that while he reviewed the majority of the
CID file prior to recommending court-martial, he did
not recall seeing either COL P's email or the related
note made by the agent. Accordingly, we find that the
evidence does not show that appellant's brigade
commander directed his accuser to prefer charges or
take any other action.
Even assuming the facts alleged by appellant are
true, we would still find that they do not constitute
unlawful command influence. While subparagraph
(5)(B) prohibits a superior convening authority from
directing a subordinate to make a particular
disposition in a case, there is no evidence that such a
direction occurred here. Colonel P expressed his
thoughts on disposing of appellant's case depending
on how the investigation developed. The written
summary of those thoughts that ended up in a CID
report did not constitute direction to LTC C or anyone
else to take any particular action. At most, COL P's
allowing his tentative disposition decision to appear
in a report circulated to his subordinates might be
viewed as a form of coercion or unauthorized
influence, however, there is no evidence that COL P
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intended them to be as such. As discussed above,
unintentionally influencing a subordinate convening
authority is no longer prohibited by Article 37.
Accordingly, we find that even if the facts alleged by
appellant were true, they would not constitute
unlawful command influence under the applicable
version of Article 37.
CONCLUSION
On consideration of the entire record the findings
of guilty and sentence are AFFIRMED.
Judge
concur.
PENLAND
and
Judge
ARGUELLES
83a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
WASHINGTON, D.C.
United States,
Appellee
v.
Darrick E. Johnson,
Appellant
USCA Dkt. No. 22-0227/AR
Crim. App. No. 2020382
ORDER
On further consideration of the granted issue, 83
M.J. __ (C.A.A.F. 2022), and in view of United States
v. Anderson, 83 M.J. __ (C.A.A.F. 2023), it is, by the
Court, this 18th day of July, 2023,
ORDERED:
That the decision of the United States Army Court
of Criminal Appeals is hereby affirmed.
For the Court,
/s/
David A. Anderson
Deputy Clerk of the Court
84a
UNITED STATES ARMY
COURT OF CRIMINAL APPEALS
Before FLEMING, HAYES, and PARKER
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist DARRICK E. JOHNSON
United States Army, Appellant
ARMY 20200382
Headquarters, 7th Army Training Command
Kenneth W. Shahan, Military Judge
Lieutenant Colonel John Merriam, Staff Judge
Advocate
For Appellant: Colonel Michael C. Friess, JA;
Jonathan F. Potter, Esquire; Major Joyce C. Liu, JA;
Captain Andrew R. Britt, JA (on brief); Jonathan F.
Potter, Esquire; Major Joyce C. Liu, JA; Captain
Andrew R. Britt, JA (on reply brief).
For Appellee: Colonel Christopher B. Burgess, JA;
Lieutenant Colonel Craig J. Schapira, JA; Major Mark
T. Robinson, JA; Captain Cynthia A. Hunter, JA (on
brief).
13 April 2022
DECISION
Per Curiam:
On consideration of the entire record, including
consideration of the issues personally specified by the
appellant, we hold the findings of guilty and the
sentence, as entered in the Judgment, correct in law
and fact. Accordingly, those findings of guilty·and the
sentence are AFFIRMED.
85a
For the Court,
[signature]
JAMES W. HERRING, JR.
Clerk of Court
86a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
WASHINGTON, D.C.
United States,
Appellee
v.
George E. Lopez,
Appellant
USCA Dkt. No. 23-0164/AF
Crim. App. No. 40161
ORDER
On further consideration of the granted issue, 83
M.J. __ (C.A.A.F. 2022), and in view of United States
v. Anderson, 83 M.J. __ (C.A.A.F. 2023), it is, by the
Court, this 18th day of July, 2023,
ORDERED:
That the decision of the United States Air Force
Court of Criminal Appeals is hereby affirmed.
For the Court,
/s/
Malcolm H. Squires, Jr.
Clerk of the Court
87a
UNITED STATES AIR FORCE
COURT OF CRIMINAL APPEALS
UNITED STATES,
Appellee
v.
George E. LOPEZ,
Technical Sergeant (E-6),
U.S. Air Force,
Appellant
No. ACM 40161
Decided: March 7, 2023
Appeal from the United States Air Force Trial
Judiciary
Military Judge: Shad R. Kidd.
Sentence: Sentence adjudged on 12 June 2021 by GCM
convened at Joint Base San Antonio-Fort Sam
Houston, Texas. Sentence entered by military judge
on 21 July 2021 and reentered on 25 August 2021:
Dishonorable discharge, confinement for 9 years and
6 months, and reduction to E-1.
For Appellant: Major Ryan S. Crnkovich, USAF;
Major Alexandra K. Fleszar, USAF; Major Eshawn R.
Rawlley, USAF; Captain Samantha P. Golseth,
USAF; William E. Cassera, Esquire; Julie Caruso
Haines, Esquire.
For Appellee: Lieutenant Colonel Thomas J. Alford,
USAF; Major Morgan R. Christie, USAF; Major
Allison R. Gish, USAF; Major John P. Patera, USAF;
88a
Major Brittany M. Speirs, USAF; Mary Ellen Payne,
Esquire.
Before KEY, ANNEXSTAD, and GRUEN, Appellate
Military Judges.
This is an unpublished opinion and, as such, does not
serve as precedent under AFCCA Rule of Practice and
Procedure 30.4.
ANNEXSTAD, Judge:
At a general court-martial, a panel of officer and
enlisted members convicted Appellant, contrary to his
pleas, of five specifications of assault consummated by
battery (Charge I); one specification of sexual assault
(Charge II); and one specification of child
endangerment and two specifications of kidnapping
(Charge III), in violation of Articles 120, 128, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 920, 928, 934. 1 Consistent with his pleas, Appellant
was found not guilty of one specification of
communicating a threat (Charge III), in violation of
Article 134, UCMJ. 2 The panel sentenced Appellant to
a dishonorable discharge, confinement for nine years
1. All references to the punitive articles of the UCMJ are to
the Manual for Courts-Martial, United States (2016 ed.). Unless
otherwise indicated, all other references to the UCMJ and the
Rules for Courts-Martial are to the Manual for Courts-Martial,
United States (2019 ed.).
2. After findings, the military judge dismissed one
specification of assault consummated by a battery (Specification
5 of Charge I), in violation of Article 128, UCMJ, as an
unreasonable multiplication of charges, subject to Appellant's
conviction for sexual assault (Specification of Charge II), in
violation of Article 120, UCMJ, being affirmed after appellate
review.
89a
and six months, and reduction to the grade of E-1. The
convening authority approved the sentence in its
entirety.
Appellant raises eight issues which we have
reordered and reworded: (1) whether Appellant's
convictions for four specifications of assault
consummated by battery (Specifications 1–4 of Charge
I) and one specification of sexual assault (Specification
of Charge II) are legally and factually sufficient; (2)
whether the child endangerment specification
(Specification 1 of Charge III) failed to state an
offense; (3) whether the record of trial is substantially
incomplete; (4) whether Appellant was denied the
effective assistance of counsel under the Sixth
Amendment; 3 (5) whether the confinement portion of
Appellant's sentence is inappropriately severe; (6)
whether the military judge abused his discretion by
failing to give a partial lack of mental responsibility
instruction with regard to the child endangerment
specification; (7) whether the Government can prove
beyond a reasonable doubt that the military judge's
failure to instruct the panel that a guilty verdict must
be unanimous was harmless; and (8) whether
Appellant's conviction for child endangerment was
legally and factually sufficient. 4 We also consider one
additional issue: (9) whether Appellant is entitled to
relief due to unreasonable post-trial delay.
With respect to issues (3), (6), (7), and (8), we have
carefully considered Appellant's contentions and find
they do not require discussion or warrant relief. See
3. U.S. CONST. amend. VI.
4. Appellant personally raises the eighth assignment of error
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).
90a
United States v. Matias, 25 M.J. 356, 361 (C.M.A.
1987).
Finding no error that materially prejudiced a
substantial right of Appellant, we affirm the findings
and sentence.
I. BACKGROUND
Appellant met AC 5 in high school and the two
married in 2008. Their sons GL and NL were born in
2009 and 2011, respectively. They were 8 and 6 years
old at the time of the offenses. AC's adult sister, GP,
lived with the family in a single-family house located
in San Antonio, Texas. On the first floor were an office
and two bedrooms, one bedroom for Appellant and AC
and the other for GP. The boys’ rooms and a loft were
located on the second floor.
The events leading to Appellant's court-martial
took place around 1 January 2018. At this time,
Appellant and AC were having marital problems and
were discussing divorce. AC testified that at the time
of the incidents she considered her marriage to be a
“business-type relationship -- very distant,” in which
she and Appellant “fought a lot” and “mentioned
divorce a lot.” The two had not shared a bed for a
couple of days due to an argument they had on AC's
birthday.
On New Year's Eve 2017, Appellant and AC
continued to argue about her birthday and other
matters. Later in the evening, Appellant and GL
attended a New Year's Eve party at a neighbor's
house, while AC remained at home with NL, who was
not feeling well. Appellant and GL returned from the
5. By the time of trial, Appellant and AC had divorced. This
opinion uses her initials at the time of trial.
91a
party around midnight and GL went upstairs to his
bedroom. AC testified she was angry that Appellant
had been drinking alcohol. AC explained:
We had made this agreement that if he was going
to drink, I would be there because ... when he came
back from Turkey, he started his [Post-Traumatic
Stress Disorder (PTSD)] sessions, and he was put on
restricted work because driving triggered his PTSD,
as well as drinking. So, I was basically the one driving
around everywhere, and as far as drinking goes, we
had this pact where he would drink if I'm there.
AC then testified that she threw her wedding rings
at Appellant and told him that she was “done” with
the marriage. In response, Appellant left the house
but returned around 0200 on 1 January 2018, at
which point the couple continued to argue. AC
testified she left the house and “took a drive around
the block” as an attempt to deescalate the situation,
but Appellant was gone when she returned home. AC
described being worried because she did not know
where Appellant was, so she attempted to find him by
calling his phone, the neighbor's phone, looking
around the house, and driving around the
neighborhood. Appellant returned to the house
around 0615. AC was still awake, GP had just left for
work, and the boys were asleep. NL slept in AC's
bedroom on the floor that night, as he was sick.
The couple continued to argue. Exhausted from
being awake all night, AC stated she eventually went
to her bedroom to try and get some sleep. Appellant
came into the bedroom a short while later as AC was
lying in bed and asked her for her cell phone.
Appellant became upset because AC had changed the
password to unlock her cell phone. She testified that
Appellant started yelling at her “like a drill sergeant”
and “the next thing [she] kn[e]w” he was on top of her
92a
with “his legs wrapped around [her] so he was
squeezing [her] with his legs” on her “abdomen” and
“choking [her] with his arm” at the same time. AC
explained that Appellant practiced ju-jitsu and
likened the episode to a ju-jitsu “arm choke.” AC
stated she felt pain while this was happening because
Appellant was squeezing her ribs with his legs and her
throat with his arm, and she felt like she could not
breathe. She described trying to gasp for air and being
in disbelief that it was happening. AC testified
Appellant finally stopped after approximately 15
seconds because NL woke up and started crying.
Appellant told NL he was just “playing with mommy,
and to go back to sleep,” but instructed AC to stay on
the bed.
Appellant also remained in the bedroom and said
they were going to have a “family meeting,” so AC
could “feel and learn the pain [she has] caused him
over the years.” AC then described how Appellant
began to order her around. She stated Appellant
yelled at her to sit at various places in the room but if
she did not move fast enough or go to the correct place,
he would charge at her, grab her, and “body slam” her
to the floor with his hands. She indicated that this
happened multiple times. After some time, AC asked
Appellant “why are you doing this,” but their son GL
entered the bedroom before Appellant could respond.
After GL entered the room, Appellant locked the
bedroom door and told GL that they were “having a
family meeting.” AC testified Appellant then
answered her question, stating “that's a good
question. I'm not really sure, but how does
murder/suicide sound to you?” AC asked Appellant to
consider the boys, but he replied “[O]h, it doesn't
matter. They're little. They won't remember this
anyway.”
93a
Appellant took AC's phone and the boys’ iPads and
moved the electronics to the first-floor office. AC
testified Appellant pulled the Wi-Fi cord out of the
wall while in the office. When Appellant returned, AC
began to plead with him to leave, and reminded him
that he was close to retirement. She stated it appeared
that Appellant was going to leave, when suddenly he
“snapped,” pushed her to the bed, and strangled her
from behind. AC described how GL, who was now
crying, asked Appellant to stop. Appellant did, and
then sat in the corner of the bedroom. AC then asked
to go to the bathroom, but Appellant told her that she
could “just pee on [her]self or pee on the bed and that
it didn't matter because [she] w[as]n't going to make
it out that day.”
NL was able to escape the bedroom at some point,
but Appellant ran after him, brought him back into
the room, and warned him not to leave again or else
he would get physical with him. AC testified that
Appellant continued to order her around, telling her
to “[s]it here. No, don't sit there. Sit there,” and that
he “body slammed” her when he thought she was not
complying. She also stated Appellant continued to tell
the boys that he was “playing with mom” but she
pleaded with the boys to leave the room, openly
disputing Appellant's statement by saying things like
“[n]o, he's not playing with me. He's hurting mommy.”
Both boys fled the room and Appellant chased them—
at which point AC escaped the room, went to the
backyard in her pajamas, and screamed for help. AC
testified that Appellant found her in the backyard,
grabbed her hair, and shoved her towards the fence—
causing her to hit the fence with the side of her face
and fall to the ground. She then described how
Appellant grabbed her, carried her to the living room,
94a
punched her in the face twice, and directed her back
to the bedroom.
Appellant then brought both boys back to the
bedroom. AC stated that GL was “shaking and crying”
while Appellant was drinking water and yelling at her
not to tell the boys to leave or he would get physical
with them. As Appellant was yelling at AC, he
vomited on her and refused to allow her to change
clothes. AC testified Appellant then told her that he
was “suddenly curiously aroused,” and told the boys to
go into the closet. They complied.
After putting the boys in the closet, Appellant
proceeded to get on top of AC and ordered her to kiss
him. When she refused, he “slapp[ed her] around.” AC
testified she tried moving around to get Appellant off
her but Appellant continued trying to kiss her and
remove her pajama pants. AC testified that she told
Appellant “[n]o” and “[y]ou don't have my permission.”
As she was trying to push Appellant off, he pinned her
down and told her that if she kept fighting him, “he
was going to start throwing punches again.” She then
described how Appellant got off her, took off his pants,
and told her “[w]e're not going to have sex how we
typically have sex.” Appellant then pulled AC's pants
off and unsuccessfully attempted to have anal sex
with her, something they had never done before. She
testified Appellant penetrated her vagina with his
penis until he ejaculated in her vagina. After
Appellant ejaculated, he dressed himself and AC. AC
asked if she could take a shower but Appellant told
her no.
AC testified at this point she was scared and really
thought Appellant was going to kill her and himself.
After being released from the closet by Appellant, the
boys joined AC on the bed. According to AC, Appellant
was frustrated the boys were asking questions and
95a
kept referring to a “family meeting”—causing AC to
fear that Appellant was going to harm them. AC then
described trying to open the bedroom window to
escape, but Appellant “smack[ed] her arms” and asked
if she needed “a reminder again of who's in charge.”
Appellant then grabbed AC, threw her on the bed, and
again strangled her with his arm in the same manner
as he had earlier.
Appellant, AC, and the boys went to the kitchen
around 1500 hours. AC's sister, GP, returned from
work while Appellant was cooking food. Appellant
asked for GP's cell phone as soon as she walked into
the house. GP complied, and asked AC if something
was wrong. Sensing something was not right, GP
attempted to leave the house, but Appellant grabbed
her and “body slammed” her to the floor before she
could exit. AC stated that GP was “screaming,” “in
shock,” and was “really emotional and scared.”
Appellant then instructed AC and GP to sit on bar
stools in the kitchen. Appellant returned to cooking
food and told GP that they were going to have a
“family meeting.” At Appellant's court-martial, AC
explained that Appellant was holding a kitchen knife
in his hand to cut meat and was “kind of taunting
[them] with the knife.” Over the next several hours,
Appellant continued to mention a murder/suicide
plan, restrict everyone's phone access, and refused to
allow anyone to leave.
Around 1800 hours, Appellant began making
phone calls to his mother and his brother, at which
time he allowed GP to go upstairs with the boys.
Shortly thereafter, Appellant took prescription muscle
relaxers in a suicide attempt. Appellant told his
mother “he had done some really bad things to [AC],
and that he was probably going to jail.” Appellant's
brother, EL, testified that he received a phone call
96a
from Appellant late that afternoon—Pacific Standard
Time—during which Appellant talked about suicide
and “going to jail for 20 years.” EL also stated that AC
interrupted the call and told Appellant to vomit; EL
described hearing Appellant vomit. Appellant
eventually gave AC her phone and she immediately
called 911 at 1835 hours.
Deputy PM and Deputy DP of the Bexar County
Sheriff's Office responded to the 911 call. When they
arrived at Appellant's house they found him talking
on his cell phone outside near his home. Deputy PM
exited the patrol car, Appellant ended his phone call,
and Deputy PM asked Appellant, “What's going on?”
According to the deputies, Appellant stated he “did it”
and he “did some cruel and unusual things.” Deputy
PM asked Appellant if he assaulted and sexually
assaulted his wife to which Appellant replied “yes.”
After Deputy PM detained Appellant and placed him
in the police car, he entered the house where he found
AC “crying” and “terrified.” Another law enforcement
officer, Patrol Sergeant AV, testified that when she
made contact with AC in the house she was
“distraught, very emotional.”
The deputies took photographs of AC's injuries. AC
had a cut lip from being shoved into the fence earlier,
her lip and eyes were slightly swollen, and she had a
scratch on her foot from running in the backyard
shoeless while calling for help. With regard to GP, the
deputies observed her in obvious discomfort due to a
leg injury. Deputy PM stated Appellant, AC, GP, and
the boys were taken to a local medical center for
evaluation.
While at the medical center, a sexual assault
forensic examination was conducted on Appellant and
on AC. During trial, an expert testified Appellant's
DNA was found in and around AC's vagina and
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underwear, and AC's DNA was found on Appellant's
penis.
At trial, AC and both boys testified Appellant
“locked” them in the bedroom. GL also testified he
witnessed Appellant on top of AC, choke her in the
bedroom, punch her, push her, “body slam” her, and
vomit on her—all on the day relevant to the charged
offenses. He described for the members that Appellant
yelled and “cussed” at AC while this was happening.
GL also remembered AC running to the backyard and
Appellant chasing her down. He confirmed Appellant
kept talking about a “family meeting” and that
Appellant instructed both him and his brother to get
in the closet. GL described being scared, shocked, and
confused the entire day.
The Government also presented testimony from a
digital forensics expert who reviewed AC's phone
records. The expert described a complete lack of phone
activity for the entire day on 1 January 2018, until AC
made the 911 call at 1835. Additionally, the
Government offered testimony and health records
from the medical exams conducted on AC and GP
following the incidents. The records detailed that AC
had bruising on both arms, which was confirmed by
testimony as consistent with being grabbed. The
records also detailed that GP had bruising on her right
outer hip and on the left side of her lower back. At
trial, the Government also introduced interviews from
both boys which were conducted by investigators of
the local Texas Department of Family and Protective
Services Agency (DFPS) within days of the incident.
During one interview, GL told DFPS he saw Appellant
“hitting, punching; cussing [his] mom out” and “[b]ody
slamming her.” During another interview, NL told
DFPS that Appellant locked him, his brother, and AC
in a room, and that the police came to the house
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because Appellant “was almost going to kill [his] mom.
Because [Appellant] was going to kill [his] mom.”
The panel of officer and enlisted members found
Appellant guilty of five specifications of assault
consummated by a battery, one specification of sexual
assault, one specification of child endangerment, and
two specifications of kidnapping.
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant contends that the evidence is legally and
factually insufficient to support the findings of guilty
on the first four specifications of the assault charge
and the sexual assault charge. Specifically, Appellant
argues: (1) AC was not a credible witness; (2) AC gave
inconsistent accounts of the incidents; (3) AC only
agreed to testify after she learned “she could get
money from the state government;” (4) the physical
evidence did not support the findings; (5) Deputy DP
did not hear Appellant say he did “cruel and unusual
things” to AC; and (6) the investigation was flawed.
We are not persuaded by any of Appellant's
contentions and find that no relief is warranted.
1. Law
Issues of legal and factual sufficiency are reviewed
de novo. United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). “Our assessment of legal and factual
sufficiency is limited to evidence produced at trial.”
United States v. Rodela, 82 M.J. 521, 525 (A.F. Ct.
Crim. App. 2021) (citing United States v. Dykes, 38
M.J. 270, 272 (C.M.A. 1993)), rev. denied, 82 M.J. 312
(C.A.A.F. 2022).
“The test for legal sufficiency is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found
99a
the essential elements of the crime beyond a
reasonable doubt.” United States v. Robinson, 77 M.J.
294, 297–98 (C.A.A.F. 2018) (quoting United States v.
Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term
reasonable doubt, however, does not mean that the
evidence must be free from conflict.” United States v.
Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017)
(citing United States v. Lips, 22 M.J. 679, 684
(A.F.C.M.R. 1986)), aff'd, 77 M.J. 289 (C.A.A.F. 2018).
“[I]n resolving questions of legal sufficiency, we are
bound to draw every reasonable inference from the
evidence of record in favor of the prosecution.” United
States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)
(citations omitted). As a result, “[t]he standard for
legal sufficiency involves a very low threshold to
sustain a conviction.” United States v. King, 78 M.J.
218, 221 (C.A.A.F. 2019) (alteration in original)
(citation omitted), cert. denied, ––– U.S. ––––, 139 S.
Ct. 1641 (2019). The test for legal sufficiency “gives
full play to the responsibility of the trier of fact fairly
to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” United States v. Oliver,
70 M.J. 64, 68 (C.A.A.F. 2011) (internal quotation
marks omitted) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)).
“The test for factual sufficiency is ‘whether, after
weighing the evidence in the record of trial and
making allowances for not having personally observed
the witnesses,’ [this] court is ‘convinced of the
[appellant]’s guilt beyond a reasonable doubt.’ ”
United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000)
(quoting United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987)). “In conducting this unique appellate
role, we take ‘a fresh, impartial look at the evidence,’
applying ‘neither a presumption of innocence nor a
100a
presumption of guilt’ to ‘make [our] own independent
determination as to whether the evidence constitutes
proof of each required element beyond a reasonable
doubt.’” Wheeler, 76 M.J. at 568 (alteration in original)
(quoting Washington, 57 M.J. at 399). This court's
review of the factual sufficiency of evidence for
findings is limited to the evidence admitted at trial.
See Article 66(d), UCMJ, 10 U.S.C. § 866(d); United
States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007)
(citations omitted).
In order to find Appellant guilty of assault
consummated by battery, in violation of Article 128,
UCMJ, as alleged in Specifications 1 through 4 of
Charge I, the panel members were required to find the
following two elements beyond a reasonable doubt: (1)
that Appellant did bodily harm to AC at or near San
Antonio, Texas, on or about 1 January 2018; and (2)
that the bodily harm was done with unlawful force or
violence. See Manual for Courts-Martial, United
States (2016 ed.) (2016 MCM), pt. IV, ¶ 54.b.(2).
Specification 1 alleged that on divers occasions
Appellant unlawfully strangled AC on the neck with
his forearm. 6 Specification 2 alleged that Appellant
unlawfully grabbed and pushed AC down to the
ground with his hands. Specification 3 alleged that
Appellant unlawfully pushed AC on the head with his
hand. Specification 4 alleged that, on divers occasions,
Appellant unlawfully struck AC in the face with his
hand.
In order to find Appellant guilty of sexual assault,
in violation of Article 120, UCMJ, as alleged, the panel
members were required to find the following beyond a
6. The panel members excepted the word “forearm” and
substituted the words “upper extremity” and found Appellant not
guilty of the excepted word and guilty of the substituted words.
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reasonable doubt: (1) that at or near San Antonio,
Texas, on or about 1 January 2018, Appellant
committed a sexual act upon AC by penetrating AC's
vulva with his penis; and (2) that Appellant did so by
causing bodily harm to AC by penetrating AC's vulva
with his penis without AC's consent. See 2016 MCM,
pt. IV, ¶ 45.b.(3)(b).
Article 120, UCMJ, explains consent as:
a freely given agreement to the conduct at issue
by a competent person. An expression of lack of
consent through words or conduct means there
is no consent. Lack of verbal or physical
resistance or submission resulting from the use
of force, threat of force, or placing another
person in fear does not constitute consent. A
current or previous dating or social
[relationship] ... by itself ... shall not constitute
consent.
10 U.S.C. § 920(g)(8)(A).
2. Analysis
Our review finds that the Government introduced
convincing evidence for a rational factfinder to find
Appellant guilty of assaulting and sexually assaulting
AC beyond a reasonable doubt. Most significant was
the testimony of AC who described with clarity the
almost 12-hour incident on 1 January 2018. She
described, in detail, how Appellant used a ju-jitsu
“arm choke” to strangle her on three occasions,
grabbed her, “body slammed” her to the floor, and
pushed her on her head with his hands. AC also
testified that Appellant forcefully penetrated her
vulva with his penis without her consent until he
ejaculated. We find AC's testimony sufficient, without
additional evidence, to support the charged offenses.
As an evidentiary standard, proof beyond a reasonable
102a
doubt does not require more than one witness to
credibly testify. See United States v. RodriguezRivera, 63 M.J. 372, 383 (C.A.A.F. 2006) (explaining
testimony of a single witness may satisfy the
Government's burden to prove every element of a
charged offense beyond a reasonable doubt).
That stated, we also find that AC's testimony was
sufficiently supported by the physical evidence
introduced at trial. First, we note evidence showed
Appellant's DNA was present in and around AC's
vagina and her underwear, and AC's DNA was
present on Appellant's penis. This evidence
specifically supports AC's testimony that she was
sexually assaulted. Second, the Government
presented the medical records from the exams
conducted on both AC and GP following the events on
1 January 2018. These medical reports detail
numerous injuries on both women that were
consistent with the assaults described by AC and GP
at trial. Furthermore, the Government supported
AC's testimony with phone records that showed that
AC did not use her phone from approximately 0600
hours until she called 911 at 1835 hours on the day of
the incident. Finally, we note that the testimony from
GL, NL, and GP corroborated most, if not all, of the
testimony provided by AC.
We also note that Appellant's own inculpatory
statements to the deputies, and his expressions of
consciousness of guilt to his mother and brother,
generally support AC's testimony at trial. Here the
record details that Appellant told the detectives he
“did it,” and he “did cruel and unusual things” while
confirming to the detectives that he assaulted and
sexually assaulted AC. Furthermore, the record also
demonstrated that Appellant told his mother “he had
done some really bad things to [AC], and that he was
103a
probably going to jail.” Finally, Appellant's brother
testified Appellant told him that he was “going to jail
for 20 years.”
As at trial, Appellant again questions AC's
credibility and motives, and highlights a number of
inconsistencies in her description of the assaults
during the subsequent investigation. We address
Appellant's most significant arguments below.
First, Appellant argues that AC was not a credible
witness because she continued to carry on a
relationship with Appellant for months following the
events of 1 January 2018. Appellant contends because
of this she must have fabricated the allegations. AC
addressed her post-assault decisions during trial, and
explained that in the nine years leading up to 1
January 2018, Appellant was never abusive to her and
that she tried to reconcile with Appellant out of love
and the family that they created together. We find
that a rational factfinder could reasonably conclude
AC's decision to continue a relationship with her
husband despite the physical and sexual abuse did not
materially undermine her trial testimony.
As for her motives to testify, Appellant contends
AC only agreed to testify against Appellant after she
learned that she could be compensated for
participating in Appellant's trial through a state
crime-victim compensation program. We again find a
rational factfinder could reasonably conclude that this
potential motive did not materially undermine AC's
trial testimony. Specifically, we note there was
evidence presented at trial that demonstrated AC
immediately called 911 when she had the chance and
immediately identified Appellant as the perpetrator.
Furthermore, the record demonstrates that AC was
“distraught,” “very emotional,” “crying,” and “frantic”
when the detectives arrived at the house.
104a
Finally, Appellant argues that AC's trial testimony
differed from what she told the police and the family
advocacy personnel. For example, Appellant contends
that AC gave different accounts about where she was
when Appellant took her cell phone, about where
Appellant placed her phone and the boys’ devices, and
about where she was when the sexual assault
occurred. We find that a rational factfinder could
reasonably find that the examples cited by Appellant
were relatively insignificant, especially when
considered in conjunction with AC's detailed
testimony, the testimony from other eyewitnesses,
including GL, NL, and GP, the physical evidence
presented at trial, and Appellant's own admissions
which all generally corroborate AC's testimony.
We conclude that viewing the evidence produced at
trial in the light most favorable to the Prosecution, a
rational trier of fact could have found the essential
elements of assault consummated by battery and
sexual assault beyond a reasonable doubt. See
Robinson, 77 M.J. at 297−98. Furthermore, after
weighing all the evidence in the record of trial and
making allowances for not having personally observed
the witnesses, we are ourselves convinced of
Appellant's guilt beyond a reasonable doubt. See Reed,
54 M.J. at 41.
B. Failure to State an Offense
Appellant contends that the child endangerment
specification failed to state an offense. Specifically,
Appellant argues the specification, as drafted, did not
specify whether the alleged child endangerment was
by design or culpable negligence. Appellant asks that
we dismiss the specification and reassess his
sentence. We find no prejudice to Appellant and
conclude that no relief is warranted.
105a
1. Additional Background
Specification 1 of Charge III alleged a child
endangerment offense in violation of Article 134,
UCMJ. The specification reads that Appellant,
at or near San Antonio, Texas, on or about 1
January 2018, was responsible for the care of
his two sons, [GL] and [NL], children under
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