United States v. Blanks ( 2017 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 38891
________________________
UNITED STATES
Appellee
v.
Vashaun M. BLANKS
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 16 March 2017
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Military Judge: Donald R. Eller, Jr.
Approved sentence: Bad-conduct discharge, confinement for 30 days,
forfeiture of $1,546.00 pay per months for 2 months, and reduction to
E-1. Sentence adjudged 15 May 2015 by GCM convened at Royal Air
Force Mildenhall, United Kingdom.
For Appellant: Major Isaac C. Kennen, USAF; Major Thomas A. Smith,
USAF; Brian L. Mizer, Esquire.
For Appellee: Major G. Matt Osborn, USAF; Gerald R. Bruce, Esquire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges
Senior Judge J. BROWN delivered the opinion of the court, in which
Chief Judge DREW and Judge MINK joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
J. BROWN, Senior Judge:
Appellant was tried at a general court-martial composed of officer and en-
listed members. Consistent with his pleas, he was found guilty of three false
statements, in violation of Article 107, Uniform Code of Military Justice
United States v. Blanks, No. ACM 38891
(UCMJ), 10 U.S.C. § 907. Contrary to his pleas, Appellant was also found
guilty of negligent dereliction of duty in failing to provide adequate support to
his spouse, 1 a fourth false official statement by submitting a false housing
allowance form, larceny of military property, and obstruction of justice, in
violation of Articles 92, 107, 121, and 134, UCMJ, 10 U.S.C. §§ 892, 907, 921,
934. 2 The members sentenced Appellant to a bad-conduct discharge, 30 days
of confinement, forfeiture of $1,546.00 per month for two months, and reduc-
tion to E-1. The convening authority approved the sentence as adjudged.
Appellant raises the following errors: (1) whether the military judge
abused his discretion in failing to suppress a confession based upon an un-
ambiguous invocation of counsel, (2) whether the military judge erred in
granting a challenge for cause, (3) whether the military judge erred in exclud-
ing certain evidence, (4) whether the evidence is factually sufficient to prove
Appellant obtained basic allowance for housing (BAH) by false pretenses,
(5) whether the military judged erred in limiting the Defense’s sentencing
argument, and (6) whether the sentence is inappropriately severe. 3 Finding
no error that prejudiced a material right of Appellant, we affirm the findings
and sentence.
I. BACKGROUND
Appellant was a Senior Airman, and at the time of his trial, he had more
than seven years of military service. The incidents that resulted in his trial
began three and a half years earlier in 2011 when Appellant received an un-
accompanied assignment to Korea. Prior to leaving for the one-year unac-
companied assignment, he married his girlfriend, Mrs. MA. His new wife re-
mained stateside and moved into her new mother-in-law’s house.
As Appellant’s wife remained stateside, he was potentially eligible to re-
ceive an additional housing allowance, in addition to his own housing allow-
ance. To receive this additional housing allowance, the Air Force required
Appellant to provide the finance office with a form that identified his wife’s
1 Appellant was found not guilty of the greater offense of willful dereliction of duty.
2Appellant was also found not guilty of a larceny allegation from a prior duty station
and a false official statement associated with that larceny allegation.
3 Appellant also alleges that the military judge’s instruction regarding beyond a rea-
sonable doubt was error. Appellant did not object to this instruction at trial. Our su-
perior court has recently resolved this issue adverse to Appellant. See United States
v. McClour, 76 M.J. 23 (C.A.A.F. 2017) (finding no plain error where a military judge
provided the instruction without defense objection).
2
United States v. Blanks, No. ACM 38891
address and included a certification from Appellant that he was providing
“adequate support” to his spouse. Upon signing the documentation, Appellant
began receiving an additional housing allowance that was computed based
upon where Appellant said that his wife was residing.
Regarding the spousal support, Appellant’s mother testified that, while
Mrs. MA lived with her, Appellant paid the electric bill for the house and sent
money to his mother on a monthly basis to provide to his wife. His wife also
used Appellant’s vehicle and his mother provided food and groceries for the
entire household. However, Appellant’s and his wife’s marital relationship
became strained. After approximately eight months, Mrs. MA moved out of
her mother-in-law’s house, leaving Appellant’s vehicle behind. Though docu-
mented support was scarce, especially after she left her mother-in-law’s
house, there was evidence that Appellant provided his wife with $200 for a
new phone. Nevertheless, Appellant continued to receive the additional hous-
ing allowance for his wife throughout his entire assignment in Korea. 4
In the summer of 2012, after a year in Korea, Appellant was reassigned to
Royal Air Force (RAF) Mildenhall, United Kingdom. Upon arriving at his
new base, Appellant completed and submitted a form again stating that he
provided “adequate support” for his wife. 5 With submission of this paperwork,
Appellant continued to receive the additional housing allowance for his wife.
Appellant and his wife maintained limited contact until November 2012.
The evidence supports that, once in the United Kingdom, Appellant did not
provide the additional housing allowance, or any financial support, to his
wife. Though they remained married, their relationship was effectively over.
At some point, Appellant met and began an intimate relationship with
another woman in the United Kingdom. Though there was some evidence
that he attempted to get a divorce from his wife, he remained legally married
to his wife and continued to receive the additional housing allowance.
In the summer of 2014, the Department of Defense directed finance offices
to revalidate the dependent information for all military members. This re-
quired all military members who claimed dependents to bring documentation
to the finance office and to recertify the accuracy of member’s entitlements.
As part of this recertification, Appellant signed the same document that he
did when he arrived, recertifying that he was still married to Mrs. MA and
4 Appellant was acquitted of stealing the housing allowance while in Korea.
5Appellant’s statement that he provided “adequate support” to his spouse formed the
basis for the false official statement allegation that resulted in an acquittal.
3
United States v. Blanks, No. ACM 38891
that he was providing adequate support to her. His claim that he was provid-
ing adequate support was the basis for one of his false official statement con-
victions.
With the receipt of Appellant’s recertification, the Government continued
to provide the additional dependent housing allowance to Appellant. His re-
ceipt of additional dependent housing allowance while in the United Kingdom
formed the basis for the larceny of military property conviction. That specifi-
cation, as alleged, spanned the entire period of time that Appellant was sta-
tioned in the United Kingdom.
Appellant’s new relationship with his girlfriend continued, and his girl-
friend became pregnant. Shortly before the birth of their child, Appellant ap-
proached leadership to request paternity leave. Appellant learned from his
supervisor, however, that the Air Force only provided paternity leave if the
mother was the member’s legal spouse. To get his paternity leave request ap-
proved, he told his first sergeant that his girlfriend was actually his wife. To
explain the different names, he told his first sergeant that his wife went by
two different names. He repeated and expanded upon this lie to both his
commander and security forces investigators. These lies about his wife and
girlfriend—that he made to his first sergeant, his commander, and criminal
investigators—constituted the three specifications of false official statements
that Appellant pleaded guilty to at trial.
Once Appellant was under investigation, he contacted his wife’s current
boyfriend, and requested that, if investigators contacted them, both his wife
and her boyfriend claim that they did not know who Appellant was. This con-
duct was the basis for the obstruction of justice charge.
In addition, though charged with willful dereliction of duty for failing to
provide adequate support to his wife over a time period that spanned his as-
signments to both Korea and the United Kingdom, the members instead
found Appellant guilty of the lesser-included offense of negligent dereliction
of duty. 6
6 Neither the Government nor the Defense requested that the military judge instruct
the members to modify the alleged timeframe if the members believed a narrower
timeframe was appropriate. Rather, the Government argued that, as long as the
members found that Appellant was derelict in his duties at any time in the asserted
timeframe, the members should return a finding of guilty to the specification. The
Defense did not object or request that the members be instructed otherwise.
4
United States v. Blanks, No. ACM 38891
II. DISCUSSION
A. Invocation of Counsel
Appellant argues that the military judge abused his discretion when he
failed to suppress Appellant’s statements to investigators. Appellant asserts
that, after waiving his right to counsel and his right to remain silent, he sub-
sequently unambiguously requested counsel and that request was not hon-
ored by the investigators. We agree that Appellant unambiguously invoked
counsel and the military judge abused his discretion by failing to suppress a
portion of the interview. Despite this, however, we conclude beyond a reason-
able doubt that admission of this portion of the interview did not prejudice
Appellant.
This court reviews a military judge’s ruling on a motion to suppress for
abuse of discretion. United States v. Cote, 72 M.J. 41, 44 (C.A.A.F 2013); see
also United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010). “The abuse of
discretion standard is a strict one, calling for more than a mere difference of
opinion. The challenged action must be ‘arbitrary, fanciful, clearly unreason-
able, or clearly erroneous.’” White, 69 M.J. at 239 (quoting United States v.
Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)). An abuse of discretion occurs when the
findings of fact are clearly erroneous or the conclusions of law are based on
an erroneous view of the law. United States v. Hollis, 57 M.J. 74, 79 (C.A.A.F.
2002). As such, the findings of fact are reviewed under the clearly erroneous
standard and conclusions of law are reviewed de novo. Cote, 72 M.J. at 44.
“On questions of fact, [we ask] whether the decision is reasonable; on ques-
tions of law, [we ask] whether the decision is correct.” United States v. Bald-
win, 54 M.J. 551, 553 (A.F. Ct. Crim. App. 2000) (citation omitted), aff’d, 54
M.J. 464 (C.A.A.F. 2001).
Invocation of the right to counsel “requires, at a minimum, some state-
ment by an accused that can reasonably be construed to be an expression of a
desire for the assistance of an attorney.” McNeil v. Wisconsin, 501 U.S. 171,
178 (1991). “Where nothing about the request for counsel or the circumstanc-
es leading up to the request would render it ambiguous, all questioning must
cease.” Smith v. Illinois, 469 U.S. 91, 98 (1984). Statements subsequent to a
clear invocation of counsel may not be considered in determining whether the
invocation was ambiguous. Id. Reviewing courts may, however, consider
statements and events immediately preceding the invocation, as well as “nu-
ances inherent in the request itself.” Id. at 99; United States v. Delarosa, 67
M.J. 318, 324 (C.A.A.F. 2009).
The determination of whether an invocation is unambiguous (requiring
the agents to immediately terminate the questioning) or ambiguous (permit-
ting further clarifying questions) is an objective inquiry based upon how a
“reasonable investigator” would view the comments. Davis v. United States,
5
United States v. Blanks, No. ACM 38891
512 U.S. 452, 459 (1994); see also United States v. Lovely, 73 M.J. 658, 672
(A.F. Ct. Crim. App. 2014). If an accused is indecisive in his request, ques-
tions regarding whether he did or did not waive counsel “must necessarily be
left to the judgment of the interviewing Agent.” Miranda v. Arizona, 384 U.S.
436, 485 (1966).
Once an accused unambiguously requests counsel, “courts may admit his
responses to further questioning only on finding that he (a) initiated further
discussions with the police, and (b) knowingly and intelligently waived the
right he had invoked.” Smith, 469 U.S. at 95 (citing Edwards v. Arizona, 451
U.S. 477, 485–86 n.9 (1981)).
Prior to raising the motion to suppress, Appellant pleaded guilty to mak-
ing false official statements to his first sergeant, his commander, and security
forces investigators about the identity of his girlfriend. 7 These statements
centered around Appellant’s attempts to mislead his leadership and investi-
gators into believing that his wife and girlfriend, though they had different
names, were actually the same person. As Appellant had previously pleaded
guilty to the false statements made to investigators prior to the motion to
suppress, whether these statements were false was no longer at issue when
the Defense raised the motion to suppress.
There were no witnesses presented by the Government or the Defense for
the motion. The basis of the motion was solely the videotaped interview.
At the beginning of the videotaped interview, Appellant was informed
that they were investigating BAH fraud, adultery, and false statement. Ap-
pellant made a knowing and voluntary waiver of his right to counsel and his
right to remain silent, and agreed to answer the investigator’s questions.
That this was a knowing and voluntary waiver of his rights is not contested
by the Defense, either at trial or on appeal.
The first portion of the interview, prior to invocation of counsel, consisted
of Appellant’s attempts to persuade the investigators that his pregnant girl-
friend was actually his wife, that his wife traveled to the United Kingdom in
7 Prior to raising the motion to suppress, the Defense entered pleas and failed to ob-
ject to admission of a videotape of the interview that forms the basis of this motion to
suppress. Only once the videotape was played for the members did the Defense raise
a motion to suppress the final 15-minutes of the videotaped statement because Ap-
pellant invoked his right to counsel during the interview. Though the motion was
untimely, the military judge allowed, and the Government concurred with, the De-
fense raising the belated the motion to suppress. As the military judge permitted and
ruled on the untimely motion, the issue was preserved for appeal.
6
United States v. Blanks, No. ACM 38891
2014, and that it was his wife who gave birth to his child in August 2014. Ap-
pellant also claimed that he financially supported his wife and provided doc-
uments that purportedly evidenced this, though he did not allow investiga-
tors to copy any of the documents.
After approximately 45 minutes, the following exchange occurred:
Investigator: We’ve been down this road right here before. Now
that we’ve cleared all of this stuff up, do you have any ques-
tions or are you still in the gray about anything?
Appellant: No, but if there was anything else then I want to—
I’m going to bring my lawyer in for everything.
Investigator: The next thing we’re going to do is ask for a
statement from you. Honestly, the same thing we talked about
in here. It would be very beneficial if you done [sic] one now
that we’ve cleared all of this up, but once again it’s entirely up
to you . . . what you want to do . . . .
Appellant: Yeah, I just want to wait for my lawyer, because I
don’t want to do any statements or anything until she’s here
and whatnot; because like I said the last time was just a bad
experience. I don’t know if I typed something that got mixed up
or what happened, but yeah, I just don’t want to deal with that
again.
Investigator: That makes sense man. 8
The investigators then stopped questioning Appellant. After discussing
how Appellant would get back to work, the investigators left the room. Appel-
lant was left in the room alone for a little more than an hour.
The investigators then reentered the room and told Appellant that they
had more questions. The investigators then asked Appellant when his wife
supposedly arrived in the United Kingdom, how she was picked up from the
airport, and where she went when she arrived. This portion of the interview,
lasting nine minutes, centered on Appellant’s claim that his wife and preg-
nant girlfriend were actually the same person.
8 There are slight differences between the videotaped interview and the findings of
fact from the military judge. Though the differences are inconsequential to the analy-
sis, we adopt the military judge’s findings of fact as to this invocation only to the ex-
tent that it mirrors what we have set forward in this opinion.
7
United States v. Blanks, No. ACM 38891
1. “[I]f there was anything else then . . . I’m going to bring my law-
yer in for everything.”
As to the first statement invoking counsel, the military judge reasoned:
At the end of that first part of the interview security forces
asked him if he had any questions or if he was confused. The
accused set forth the precondition; he said, “If there’s anything
else I’m going to bring my lawyer into it.” The court finds that
this is ambiguous at best. “If” was a condition present; it was
not an indication at that point of his desire to invoke his rights
to counsel. He then indicated “Anything else.” The court finds
that this is ambiguous as to whether these are different mat-
ters, that this is a follow-up to the first questions; it certainly
was not a clear indication by the accused of his desire not to
answer questions, rather to have his lawyer present. Further
the accused indicates that he was going to bring his lawyer into
this, which is forward, prospective, plan to invoke his rights or
have his lawyer at some future point. The court finds that at
that stage the accused had not clearly and unequivocally re-
quested a lawyer.
As to this first statement, we find that the military judge did not abuse
his discretion. We agree with the military judge that this statement was a
conditional statement referencing a decision to be made in the future and did
not therefore constitute an unequivocal invocation of Appellant’s right to
counsel.
2. “I just want to wait for my lawyer because I don’t want to do
any statements or anything until she’s here . . . .”
We turn then, to the second invocation of Appellant’s right to counsel. As
with the immediately preceding invocation, the military judge concluded that
the second statement was not an unequivocal request for counsel. The mili-
tary judge’s rationale focused on the purported ambiguity of the invocation
based on his conclusion that it only referenced a written statement rather
than a request for counsel for all future questions.
[As the prior statement was not an unequivocal request for
counsel,] security forces were not precluded from asking for a
written statement. He was then provided that opportunity to
provide a statement; in context again it is clear from the situa-
tion that it is a request for a written statement. The accused’s
response indicates that he understood it as same. The accused
did not want to provide a written, typed statement without a
lawyer. Again the court finds that this was not an invocation of
8
United States v. Blanks, No. ACM 38891
rights, or the accused’s expressed desire to only deal with secu-
rity forces through his counsel. This was limited solely to the
provision of a written statement.
It is as to this second invocation that we part ways with the military
judge. We find the military judge abused his discretion when he concluded
this second statement was not an unequivocal invocation of counsel. The mili-
tary judge abused his discretion in concluding this was an ambiguous invoca-
tion for two reasons.
First, the meaning of Appellant’s words, in context, was clear. Appellant
wanted an attorney for “everything,” and he did not want to do “statements
or anything” without his lawyer. Appellant’s response, by its very terms, was
not limited to written statements. Appellant specifically referenced “any
statements,” referring to more than just one type of statement. He also ex-
panded his request for counsel beyond just providing statements to “any-
thing.”
If there was any doubt as to the reasonable meaning of that response, it
should have been put to rest when considered in the context of Appellant’s
immediately preceding statement that “if” there was anything else, he want-
ed his attorney for “everything.” When the investigators then asked for some-
thing else—a written statement—Appellant followed through with what he
just told the investigators he would do. He invoked his right to counsel for
everything, or as he specifically told the investigators, for “any statements or
anything.” Viewing these two statements together, Appellant’s response was
an unequivocal request for counsel as to anything and everything the investi-
gators wanted to ask him. There was nothing ambiguous about Appellant’s
request.
Second, the lack of ambiguity was also evidenced by the investigator’s re-
sponse to the invocation. The military judge, however, failed to acknowledge
in his analysis the actions and perceptions of the investigators to the invoca-
tion at issue. 9 The investigators immediately stopped the questioning, turned
the discussion to the administrative aspects of ending the interview, and left
the interview room for more than an hour. As evidenced by these actions,
they were not confused as to the meaning of his response. There was no clari-
9 The military judge lacked testimony from the investigators on this point as the
Government, despite having the burden of proof, elected not to present it. Though the
standard is an objective/reasonableness test—not subjective—their testimony may
have been helpful to assess their subjective beliefs and surrounding circumstances
and thus whether those beliefs were objectively reasonable.
9
United States v. Blanks, No. ACM 38891
fication needed, and the investigators did not request one. The military judge
omitted this evidence entirely; instead, he focused on how the investigators
responded to Appellant’s other requests for counsel both before and after this
invocation—apparently reasoning that, if the investigators honored other un-
ambiguous requests, it was more likely they would have honored a similar
request here. This omission is odd as the investigator’s reactions—especially
absent any testimony from the investigators regarding their belief and basis
for that belief—was a crucial piece of evidence before the military judge. Ac-
cordingly, while it is helpful to consider the entirety of the interview prior to
the invocation, the military judge erred in failing to consider the investiga-
tor’s response to the invocation of counsel at issue in the suppression motion.
For these reasons, and having reviewed the entirety of the interview our-
selves, we conclude that a reasonable investigator would view Appellant’s
second statement, especially when paired with the first statement, as an un-
ambiguous invocation of counsel. The military judge abused his discretion in
concluding otherwise and in failing to suppress the subsequent portions of
the interview.
3. Prejudice
Though we have concluded the military judge erred in failing to suppress
the last 15 minutes of the interview, that does not end our analysis. The next
question is whether this constitutional error was harmless beyond a reasona-
ble doubt such that we need not set aside Appellant’s convictions. 10 See Unit-
ed States v. Mitchell, 51 M.J. 234, 240 (C.A.A.F. 1999). The Supreme Court
has placed the burden on the Government “to prove beyond a reasonable
doubt that” inadmissible evidence obtained from a violation of the Constitu-
tion “did not contribute to the verdict obtained.” Chapman v. California, 386
U.S. 18, 24 (1967). We conclude that that the Government has met their bur-
den here.
The portion of the interview that the military judge erroneously admitted
concerned Appellant’s false claims that his pregnant girlfriend was actually
his wife, that his wife traveled to the United Kingdom, and that the confusion
was caused because his wife had two names. This portion of the interview fo-
cused on these lies, not whether Appellant was providing support. Further-
more, Appellant did not make any new admissions during this portion of the
interview but merely continued the lies he began in the first portion of the
10Appellant’s counsel fails to articulate in pleadings to this court how Appellant was
purportedly prejudiced by admission of the last portion of the interview. Rather, they
merely state, in a conclusory sentence, that the Government has failed their burden.
10
United States v. Blanks, No. ACM 38891
interview. The issue of support came up in the second portion of the interview
in only an extremely limited manner.
Appellant: So what . . . is it that you need?
Investigator: Financial records to show the BAH stuff, and I
think that’s it man. Because like I said that other stuff, that’s
not panning out at all.
Appellant: Okay.
....
Appellant: I’ll figure it all—I actually tried getting my Discover
card information while you were out so I can show you that,
but I can’t remember the password for it—it’s either the pass-
word or—I don’t know what it is, or the username.
Investigator: That’s fine.
Appellant: I’ll try to get you whatever I can.
The interview then ended.
The military judge, however, instructed the members in a manner that
minimized the impact of this portion of the interview. The military judge,
with the agreement of the Defense, instructed the members as follows:
[T]hrough the testimony of [the investigator], and then again
through the end of that interview, there was some hint or sug-
gestion that [Appellant] was going to provide some further doc-
uments; and . . . those documents may or may not have ever
come across your desk.
He is again under no obligation or compulsion to bring any-
thing to your attention. He doesn’t have to provide documents
to the police; he didn’t have to talk to them. To the extent he
talked to them you consider what he said; fine, great. But he’s
under no obligation of anything, and you will not infer any-
thing adverse to him because those documents may or may not
have ever been provided to law enforcement.
So again you won’t get any arguments from counsel on that,
and you’ll get further instructions when I give you those. But
before you even think about that you just put it out of your
mind, that’s not the issue. You deal with the evidence in front
of you, not anything that may or may not have ever been pre-
sented to you. That’s not how the law works; and if you have
any questions about that later on you certainly are free to talk
to me about it; but I will give you further instructions.
11
United States v. Blanks, No. ACM 38891
The members did not have any questions about this instruction and nei-
ther counsel referred to Appellant’s unwillingness to provide the requested
documents as a basis to find him guilty or to impose a greater sentence.
In short, the erroneously admitted portion of the interview was merely a
continuation of Appellant’s lies that were made in the first portion of the in-
terview, Appellant had previously pleaded guilty to those lies when the video-
tape was admitted and played for the members, and counsel did not rely or
reference any specific statements from that portion of the interview in their
findings or sentencing arguments. Consequently, we conclude that the Gov-
ernment has demonstrated beyond a reasonable doubt that the admission of
this evidence did not contribute to the verdict or the sentence in this case.
Appellant is not entitled to relief as to this issue.
B. Challenge for Cause
Appellant alleges it was error for the military judge to grant the Govern-
ment’s challenge for cause against Major (Maj) GC and Senior Master Ser-
geant (SMSgt) CM—challenges the Defense affirmatively concurred with—
because the Government failed to articulate on the record their rationale for
the challenge. Appellant appears to argue that, regardless of whether the ba-
sis for the challenge is otherwise clear from the record, it is still error to grant
a challenge absent a detailed explanation on the record. We find that Appel-
lant affirmatively waived this issue when the Defense agreed with the Gov-
ernment that the member should be removed for cause.
Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) provides that a member
shall be excused for cause whenever it appears that the member “[s]hould not
sit as a member in the interest of having the court-martial free from substan-
tial doubt as to legality, fairness, and impartiality.” “This rule encompasses
challenges based upon both actual and implied bias.” United States v. Elfay-
oumi, 66 M.J. 354, 356 (C.A.A.F. 2008) (citing United States v. Clay, 64 M.J.
274, 276 (C.A.A.F. 2007)). R.C.M. 912(f)(3) provides that “the party making a
challenge shall state the grounds for it.”
During voir dire, Major GC told the court that he recognized Appellant,
though he was not sure from where, and that he would be more likely to find
a senior ranking witness more credible because they were screened and vet-
ted by the Air Force before they assumed that position. SMSgt CM told the
court, among other things, that he personally received dual housing allow-
ances while he was in Korea and his wife remained in the states, that he re-
called his responsibilities and obligations regarding receipt of that additional
money, and that he understood he had a military obligation to provide sup-
port for his wife.
12
United States v. Blanks, No. ACM 38891
At the conclusion of voir dire, the trial counsel informed the military
judge that they challenged for cause both Maj GC and SMSgt CM. The mili-
tary judge then asked the Defense if they opposed the challenges for cause, to
which they responded, “No, Sir.” The military judge then summarily granted
trial counsel’s challenge for cause against both Maj GC and SMSgt CM.
We conclude that Appellant affirmatively waived this issue when he con-
ceded, on the record, that the military judge should grant the Government’s
challenges for cause. “[W]aiver is a deliberate decision not to present a
ground for relief that might be available in law.” United States v. Campos, 67
M.J. 330, 332 (C.A.A.F. 2009) (quoting United States v. Cook, 406 F.3d 485,
487 (7th Cir. 2005)). “[W]hen an error is waived, . . . the result is that there is
no error at all . . . .” United States v. Chin, 75 M.J. 220, 222 (C.A.A.F. 2016)
(quoting United States v. Weathers, 186 F.3d 948, 955 (D.C. Cir. 1999)). The
Defense affirmatively declined to oppose the Government’s challenges. There
is thus no error for us to review. 11
C. Military Judge’s Exclusion of Testimony
Appellant asserts that the military judge abused his discretion by prohib-
iting Appellant’s mother and sister from testifying that his spouse, Mrs. MA,
stole items from his mother’s house while she lived with them. Mrs. MA pur-
portedly lived with Appellant’s mother during the first eight months of Appel-
lant’s assignment to Korea. We conclude that the military judge did not
abuse his discretion in excluding this evidence.
We typically exercise great restraint in reviewing a military judge’s deci-
sion to admit or exclude evidence under Military Rule of Evidence (Mil. R.
Evid.) 403. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000). A mili-
tary judge may exclude relevant evidence “if its probative value is substan-
tially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the members, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” Mil. R. Evid. 403. When a
military judge conducts a proper balancing test under this rule, the ruling
11 We recognize that this court is permitted, under Article 66(c), UCMJ, 10 U.S.C. §
866(c), to review issues affirmatively waived by an appellant at trial. United States v.
Chin, 75 M.J. 220 (C.A.A.F. 2016) (a court of criminal appeals may, on its own initia-
tive, determine whether to leave a trial-stage waiver of an error intact). Despite this
authority, we will only ignore an affirmative waiver in the most deserving cases. This
is not such a case. Appellant asserts neither prejudice nor the absence of implied bias
on behalf of either member. Furthermore, from a review of the record, it is apparent
that both the parties and the military judge all concluded that the members’ respons-
es and demeanor provided a sufficient basis to grant the challenges.
13
United States v. Blanks, No. ACM 38891
will not be overturned unless there is a “clear abuse of discretion.” Id. (quot-
ing United States v. Ruppel, 49 M.J. 247, 250 (C.A.A.F. 1998)).
Immediately before the Defense began its case by calling Appellant’s
mother and sister, the Government moved to preclude the witnesses from tes-
tifying that, while Mrs. MA resided with them, she was a thief and a slob.
The Defense argued that this portion of their anticipated testimony was ad-
missible for two reasons: (1) the similarities and consistency between these
two witnesses made their overall testimony, to include how Appellant sup-
ported his wife while Appellant was in Korea, more credible; and (2) the
items Mrs. MA purportedly stole from the house could be considered ade-
quate support.
The military judge granted the motion in limine in part, allowing the wit-
nesses to describe how messy Mrs. MA was while with Appellant’s mother
but prohibiting them from labeling Mrs. MA a thief. The military judge ex-
plained:
Considering the proffers of the parties I’ll allow defense counsel
to ask questions about their interactions with her, and the time
she spent at the house, whether she was employed or not em-
ployed; I’ll even allow you to ask whether she was a tidy person
or not. I will not allow you to ask about accusations of theft.
The court finds they are not particularly useful as to anything
about the credibility of [Mrs. MA]. There’s no evidence before
this court to support the proposition that these are crimes of
Crimen Falsi that would go to her credibility.
On balance, considering a 403 balancing test, I do not find that
the limited probative value that somehow this would corrobo-
rate each witness’s testimony is sufficient, and it is substantial-
ly outweighed by the confusion of the issues, by the danger of
unfair prejudice, in that it becomes a matter of a trial within a
trial. The members have heard the deposition of [Mrs. MA],
they can consider her statements; and to the extent that they
are contradicted by other evidence they can make a determina-
tion as to her credibility.
Getting into issues of whether she is or is not a thief is of no
value from the court’s perspective.
During trial counsel’s cross-examination of Appellant’s mother, Appel-
lant’s mother testified that Appellant continued paying her electricity bill
even after Mrs. MA moved out in March 2012. His mother then explained
that she had been instructed not to explain to the members why Appellant
kept paying the bill despite his wife moving out.
14
United States v. Blanks, No. ACM 38891
Defense counsel asked the military judge to permit him to clarify, outside
the presence of the members, why Appellant kept paying the electricity bill.
Once the members had departed, she testified, “[Appellant] owes myself, as
well as his sister’s [sic] money, because of all of the items that [Mrs. MA]
stole from my home. So the easiest way to do that was to have him keep
maintaining some part of a bill, something; a way to give me money every
month.”
The defense counsel then told the military judge that he did not want to
elicit that response in front of the members. Instead, the defense counsel’s
only concern was that the members not view the response as a refusal to an-
swer the question. To avoid this concern, the Defense requested that the mili-
tary judge properly instruct the members and the military judge agreed to do
so.
We conclude that the military judge did not abuse his discretion in pro-
hibiting Appellant’s mother and sister from testifying about their personal
beliefs that Mrs. MA was a thief. Notably, the military judge never prohibited
Appellant from introducing evidence or testimony regarding support purport-
edly provided to Mrs. MA by either Appellant or his mother. Appellant’s
mother testified that Appellant not only paid her electricity bills, but also
provided cash to his wife and allowed his wife to use Appellant’s vehicle. As
such, the witnesses were permitted to testify about relevant information per-
taining to whether Appellant was supporting, both directly and indirectly, his
wife while he was stationed in Korea.
What was objectionable, and what the military judge ultimately ruled up-
on, was that these witnesses were not permitted to testify about their belief
that Mrs. MA was a thief. That these witnesses personally believed Mrs. MA
stole items from the house had little to no relevance to the ultimate question
of whether Appellant provided support to his wife. Accordingly, the military
judge’s ruling focused on the characterization of Mrs. MA as a thief. Extrinsic
evidence, other than a criminal conviction, is not admissible to prove specific
instances of Mrs. MA’s conduct in order to attack her character for truthful-
ness. Mil. R. Evid. 608(b). Testimony that Mrs. MA stole property from Ap-
pellant’s mother was an improper attempt to impeach Mrs. MA by extrinsic
evidence. The military judge’s ruling was proper, and we agree with the mili-
tary judge’s conclusion that the admission of such testimony under these par-
ticular facts had limited probative value and, to the extent there was any
value, it was substantially outweighed by the potential of member confusion,
unfair prejudice, and unnecessarily creating a “trial within a trial.” We reject
this assignment of error.
15
United States v. Blanks, No. ACM 38891
D. Factual Sufficiency
Appellant next argues that the evidence was factually insufficient to show
that Appellant made a false official statement in August 2014 when he certi-
fied that he provided “adequate support” to his dependents. Appellant further
argues that, if that offense was factually insufficient, then the larceny of
housing allowances offense must also be factually insufficient since the lar-
ceny was accomplished through that purportedly intentionally false certifica-
tion. In short, if there was no false statement, there was no larceny by false
pretenses. We are unpersuaded by Appellant’s arguments and find both of-
fenses factually sufficient.
We review issues of factual sufficiency de novo. See United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual sufficiency
is “whether, after weighing the evidence in the record of trial and making al-
lowances for not having personally observed the witnesses, [we are] con-
vinced of the [appellant]’s guilt beyond a reasonable doubt.” 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 presumption of guilt” to “make [our] own in-
dependent determination as to whether the evidence constitutes proof of each
required element beyond a reasonable doubt.” Washington, 57 M.J. at 399.
While we must find that the evidence was sufficient beyond a reasonable
doubt, it “does not mean that the evidence must be free of conflict.” United
States v. Galchick, 52 M.J. 815, 818 (A.F. Ct. Crim. App. 2000).
1. False Official Statement—Housing Allowance Certification
The military judge properly instructed the members that, to support a
conviction for false official statement under Article 107, UCMJ, the Prosecu-
tion must prove beyond a reasonable doubt that:
(1) [Appellant] signed an AF Form 594, application to start/stop
or change basic allowance for quarters, BAQ or dependency re-
determination;
(2) That such record was false, in that [Appellant] certified that
he provided adequate financial support to his dependent
spouse, [Mrs. MA], when he had not provided adequate finan-
cial support to his dependent spouse, [Mrs. MA], from on or
about 12 July 2012 to on or about 6 August 2014;
(3) That the accused knew the record was false at the time he
signed it;
(4) That the false record was made with the intent to deceive.
16
United States v. Blanks, No. ACM 38891
As to this offense, the Defense’s argument at trial, as well as on appeal,
primarily relies on the assertion that the Government failed to prove beyond
a reasonable doubt that Appellant had specific knowledge of how much sup-
port constituted adequate support. If Appellant did not know the exact mean-
ing of adequate support, the Defense argues his assertion that he was provid-
ing adequate support could not have been intentionally false or made with
the intent to deceive. In support of that argument, the Defense highlighted
that adequate support was not defined on the form, its meaning was never
defined or briefed to Appellant, and different military regulations define ade-
quate support in different ways. 12 We are not persuaded.
By the time Appellant submitted this documentation to the finance office,
he had received additional “spousal” housing allowance for the prior three
years. He received these additional allowances because he previously claimed
he was providing adequate support to her and provided information to au-
thorities where she was purportedly residing stateside. Upon arriving in the
United Kingdom, however, Appellant’s relationship was on its last legs, and
within a couple of months they stopped communicating almost completely.
Appellant stopped providing any financial support to his wife. By the time he
signed the certification in 2014, approximately two years had passed since he
had provided financial support to his wife. Nevertheless, he claimed he was
still providing adequate support, and listed his wife’s residence as his moth-
er’s house—though he knew that she had not lived there for more than two
years. Even assuming Appellant was ignorant as to exactly how much sup-
port was considered “adequate,” there is a huge gulf between some support
and no support whatsoever. The evidence supported that he provided no sup-
port whatsoever during the several years he was assigned in the United
Kingdom.
This was neither a mistake nor a result of confusion. He was receiving
additional housing allowance for submitting this false document. When he
was finally confronted by investigators, he concocted a web of lies where he
masqueraded his girlfriend as his wife. As part of his plan, he even showed
investigators fabricated documents to support his false claims of supporting
his wife financially. He also contacted his wife and her then-boyfriend to per-
12 As to the allegations regarding the receipt of spousal housing allowance in Korea,
there was also evidence that Appellant provided some amount of support to his wife,
to include money, use of his vehicle, and providing her room and board at his moth-
er’s house for eight months. The members acquitted him of the larceny of housing
allowances while he was in Korea. They also acquitted him of willfully being derelict
in his duty to provide adequate support for his wife, finding him guilty of the lesser-
included offense of negligent dereliction of duty.
17
United States v. Blanks, No. ACM 38891
suade them to lie if contacted by investigators. These actions show conscious-
ness of guilt.
With the overwhelming evidence presented at trial, we have little difficul-
ty concluding that Appellant’s August 2014 submission to the finance office
constituted a false official statement as alleged. We conclude, after making
allowances for not personally observing the witnesses, that Appellant is
guilty of this offense beyond a reasonable doubt.
2. Larceny—Housing Allowances
The military judge properly instructed the members that, to support a
conviction for larceny under Article 121, UCMJ, the Government must prove
beyond a reasonable doubt that:
(1) At or near RAF Mildenhall, United Kingdom, between on or
about 28 May 2012 and on or about 21 January 2015; the ac-
cused wrongfully obtained . . . money from the possession of the
United States;
(2) The property belonged to the United States;
(3) The property was of a value of more than $500;
(4) That the obtaining by [Appellant] was with the intent to
permanently appropriate the property to [Appellant’s] own use;
(5) That the property was military property.
Appellant’s primary argument as to this allegation is that the evidence
does not support that his obtaining of the money was wrongful, because the
evidence is insufficient to show that he made a misrepresentation with an
intent to deceive.
As the Government affirmatively asserted on the record, the larceny was
based on a theory of taking by false pretenses, rather than by wrongful with-
holding. Consequently, the military judge instructed the members that:
[O]btaining is wrongful only when it is accomplished by false
pretenses with a criminal state of mind. A criminal false pre-
tenses [sic] is any misrepresentation of fact by a person who
knows it to be untrue, which is intended to deceive, which does
in fact deceive, and which is the means by which the value is
obtained from another without compensation.
As a result of the Government’s theory of criminality, it is necessary to
identify the intentional misrepresentations by Appellant that constituted the
method by which he obtained the housing allowance money.
As to this, the Government presented two Air Force Form 594s, “Applica-
tion and Authorization to Start Stop or Change Basic Allowance for Quarters
18
United States v. Blanks, No. ACM 38891
(BAQ) or Dependency Redetermination.” The first form was submitted on 11
July 2012 and the second form was submitted on 6 August 2014.
With the exception of his wife’s date of birth (that differed by one day on
the forms), both of the Form 594s were filled out identically. Appellant
claimed on both that his wife was living at his mother’s house. The finance
office used the address provided on this form to determine the additional
housing allowance Appellant was entitled to receive for his wife. Appellant’s
own mother, however, testified that Appellant’s wife moved out of her house
around February or March of 2012. That was four months prior to Appellant
submitting his first Form 594 and 30 months prior to his submission of the
second Form 594. In addition, Appellant also went to his mother’s house be-
fore his assignment to RAF Mildenhall and learned, first hand, that his wife
no longer lived at his mother’s house.
In addition, on both forms, Appellant certified and signed that he provid-
ed “adequate support” to his dependents. The evidence presented at trial,
however, demonstrated that from at least July 2012 until January 2015, he
was providing no support to his wife. In addition, after November 2012, they
effectively ended all contact with one another.
Considering the evidence presented, we conclude that Appellant wrong-
fully obtained the additional housing allowance while he was in the United
Kingdom by making repeated false statements to the finance office regarding
where his wife was residing, as well as falsely representing that he was
providing support to his wife. Accordingly, having made allowances for not
having personally observed the witnesses, and having paid particular atten-
tion to the matters raised by Appellant, we find the evidence factually suffi-
cient to support the conviction of theft of more than $500 of military property,
by false pretenses, between the alleged timeframes of 28 January 2012 and
21 January 2015.
E. Military Judge’s Limitation of Defense Argument Regarding Med-
ical Retirement
Appellant argues that the military judge erred by prohibiting the Defense
from arguing during sentencing Appellant’s purportedly approved, and im-
minent, medical retirement. We disagree and conclude that the Defense af-
firmatively waived any error at trial.
During Appellant’s written unsworn statement, Appellant wrote that he
had an approved medical retirement in June of the prior year and that he
was aware that, “regardless of [the member’s] decision, [he] will be dis-
charged from the military either through the MEB process or through the
administrative discharge process initiated by [his] commander.” He then
19
United States v. Blanks, No. ACM 38891
asked the members not to impose a punitive discharge. The Government did
not rebut these assertions.
Appellant’s asserted error occurred when the Defense was arguing
against the imposition of a bad-conduct discharge (BCD):
ADC: And regarding the BCD as well, you should not come
away thinking that if you don’t give him a [BCD] he is going to
continue in the Air Force. You have heard his unsworn and you
know his days in the Air Force are numbered—
MJ: Counsel, sua sponte, move on.
ADC: Yes, Sir. Yes, Sir.
The Defense then continued on another thread of their argument without
otherwise objecting or clarifying further his intended argument.
The military judge instructed the members regarding Appellant’s un-
sworn reference to the potential of an administrative discharge, without De-
fense objection, as follows:
The accused’s unsworn statement included the accused’s per-
sonal statements about being administratively, or medically
discharged following this court-martial. An unsworn statement
is a proper means to bring information to your attention and
you must give it appropriate consideration.
Your deliberations should focus on an appropriate sentence for
the accused for the offenses of which the accused stands con-
victed. For example, it is not your duty to try to anticipate dis-
cretionary actions that may be taken by the accused’s chain-of-
command or other authorities. Your duty is to adjudge an ap-
propriate sentence for this accused that you regard as fair and
just when it is imposed and not one whose fairness depends
upon actions that others may or may not take in the future.
The Defense, for the first time on appeal, suggests that Appellant was
prevented from arguing that a punitive discharge was unnecessary given Ap-
pellant’s pending medical retirement. The record, however, does not support
that assertion. The record did not establish with particularity what counsel
intended to argue, and the military judge did not affirmatively rule that
counsel was prohibited from making certain arguments. The military judge
directed counsel to move on and the defense counsel agreed.
In addition, the military judge did not restrict the Defense’s ability to pre-
sent evidence on this matter, and the military judge appropriately instructed
the members on the evidence they chose to admit. The only references to Ap-
pellant’s medical retirement were in his unsworn statement. The military
20
United States v. Blanks, No. ACM 38891
judge appropriately instructed the members that they must give Appellant’s
unsworn statement appropriate consideration, but that their focus should be
on providing an appropriate sentence for the crimes he was convicted of with-
out reliance on what others might do in the future. Consequently, the mem-
bers were appropriately instructed and Appellant was not otherwise prevent-
ed from providing admissible information in sentencing. See United States v.
Talkington, 73 M.J. 212, 216 (C.A.A.F. 2014) (addressing a military judge’s
instruction regarding an appellant’s unsworn statement and observing that
the proper focus of sentencing is on the offense and the character of the ac-
cused, and “to prevent the waters of the military sentencing process from be-
ing muddied by an unending catalogue of administrative information.”).
It is unnecessary, however, for us to address the issue now raised by Ap-
pellant regarding how a medical retirement can be argued or the limits of a
military judge’s discretion in controlling argument of counsel. Here, counsel
affirmatively chose to continue argument without making, then or after ar-
gument, an objection to the military judge’s request. Under these circum-
stances, we conclude that the Defense not only failed to preserve any pur-
ported error, but affirmatively waived it by agreeing to move on to another
portion of argument without objection or hesitation. We reject this assign-
ment of error.
F. Sentence Severity
Appellant argues his sentence was inappropriately severe. We disagree.
This court “may affirm only . . . the sentence or such part or amount of the
sentence, as it finds correct in law and fact and determines, on the basis of
the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. §
866(c). In determining whether a sentence should be approved, our authority
is “not legality alone, but legality limited by appropriateness.” United States
v. Nerad, 69 M.J. 138, 141 (C.A.A.F. 2010) (quoting United States v. Atkins,
23 C.M.R. 301, 303 (C.M.A. 1957)). This authority is “a sweeping congres-
sional mandate to ensure a fair and just punishment for every accused.”
United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005) (quoting United
States v. Bauerbach, 55 M.J. 501, 504 (Army Ct. Crim. App. 2001)). This task
requires “‘individualized consideration’ of the particular accused ‘on the basis
of the nature and seriousness of the offense and the character of the offend-
er.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting Unit-
ed States v. Mamaluy, 27 C.M.R. 176, 180–81 (C.M.A. 1959)). In conducting
this review, we must also be sensitive to considerations of uniformity and ev-
enhandedness. United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (cit-
ing United States v. Lacy, 50 M.J. 286, 287–88 (C.A.A.F. 1999)).
Appellant, despite receiving additional housing allowance for his wife,
failed to adequately support her. Despite having little to no contact with his
21
United States v. Blanks, No. ACM 38891
wife while he was stationed in the United Kingdom, he lied by claiming he
was providing adequate support to her when he was actually providing none.
He lied to receive money provided to him for his wife’s stateside housing ex-
penses, with an intent to permanently deprive the Government of this money
by keeping it for his own personal uses. His deception, though, went even
deeper. When suspicions were raised about his marriage, he responded by
continually lying to leadership and investigators. It went beyond a mere de-
nial of wrongdoing to an extravagant and convoluted lie that his pregnant
girlfriend was actually his wife and that his wife went by both her legal name
and his girlfriend’s name.
The military judge instructed the members that the maximum punish-
ment for these crimes was a dishonorable discharge, 30 years and 3 months
of confinement, total forfeiture of all pay and allowances, and reduction to the
lowest enlisted grade. Trial counsel argued that the members should impose
a sentence that included a bad-conduct discharge and 15 months of confine-
ment. The members’ sentence, including a bad-conduct discharge and 30 days
of confinement, was well below both the maximum available for these offens-
es and that argued by trial counsel.
We have given individualized consideration to this particular Appellant,
the nature and seriousness of the offenses, Appellant’s record of service, and
all other matters contained in the record of trial. We find that the approved
sentence of a bad-conduct discharge, confinement for 30 days, forfeiture of
$1,546.00 pay per month for two months, and reduction to E-1 was within the
discretion of the panel and convening authority, was legally appropriate
based on the facts and circumstances of this particular case, and was not in-
appropriately severe.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
approved findings and sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
22