United States v. Flores ( 2023 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32728
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UNITED STATES
Appellee
v.
Jada FLORES
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 27 July 2023
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Military Judge: Pilar G. Wennrich.
Sentence: Sentence adjudged 20 April 2022 by SpCM convened at Mac-
Dill Air Force Base, Florida. Sentence entered by military judge on 11
May 2022: Bad-conduct discharge, confinement for 2 months, forfeiture
of $1,130.00 pay per month for 2 months, and reduction to E-1.
For Appellant: Major Jenna M. Arroyo, USAF.
For Appellee: Captain Olivia B. Hoff, USAF; Captain Jocelyn Q. Wright,
USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, ANNEXSTAD, and GRUEN, Appellate Military
Judges.
Judge GRUEN delivered the opinion of the court, in which Chief Judge
JOHNSON and Judge ANNEXSTAD joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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GRUEN, Judge:
A special court-martial comprised of a military judge convicted Appellant,
consistent with her pleas and pursuant to a plea agreement, of one
United States v. Flores, No. ACM S32728
specification of attempt to commit the offense of using false pretenses to obtain
services, one specification of making a false official statement, and two specifi-
cations of wrongful distribution of marijuana in violation of Articles 80, 107,
and 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 907,
912a. 1,2 The military judge sentenced Appellant to a bad-conduct discharge,
two months of confinement, forfeiture of $1,130.00 pay per month for two
months, and reduction to the grade of E-1. 3 The convening authority took no
action on the findings or adjudged sentence.
Appellant raises three issues: (1) whether the Specification of Charge III,
alleging she made a false official statement, failed to state an offense; (2)
whether the Specification of Charge III and Specification 2 of Charge II, alleg-
ing Appellant attempted to use false pretenses to obtain services, unreasonably
multiplied the charges against her; and (3) whether Appellant’s sentence is
inappropriately severe. 4
With regard to issue (1), Appellant pleaded guilty to this offense. As such,
we consider whether Appellant’s plea was provident and whether the military
judge abused her discretion by accepting the plea. We find Appellant’s pleas to
Charge III and its Specification were not provident and the military judge
abused her discretion by accepting them. Because we set aside the conviction
for Charge III and its Specification, we find issue (2) is moot. We affirm the
remaining findings of guilty and the sentence, as reassessed.
I. BACKGROUND
Appellant was an entry control point security forces Airman. In November
2021, the Air Force Office of Special Investigations began investigating her for
distributing marijuana to two other Airmen. After Appellant learned of the
investigation, she feared she would not be able to pay her apartment lease if
she lost her job or went into confinement. Therefore, Appellant sought to be
1 Unless otherwise noted, all references in this opinion to the UCMJ are to the Manual
for Courts-Martial, United States (2019 ed.).
2 Appellant initially pleaded not guilty to Specification 1 of Charge II alleging an at-
tempt to wrongfully distribute marijuana in violation of Article 80, UCMJ. This speci-
fication was withdrawn and dismissed with prejudice in accordance with the plea
agreement.
3 Under the terms of Appellant’s plea agreement, the maximum sentence available was
a bad-conduct discharge, 4 months’ confinement, forfeiture of two-thirds pay per month
for 12 months, reduction to the grade of E-1, and a reprimand.
4 Appellant personally raises issue (3) pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
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United States v. Flores, No. ACM S32728
released from her lease obligations and to avoid paying the early lease termi-
nation fee of $3,178.00. One of Appellant’s co-workers provided her with false
permanent change of station (PCS) orders. Appellant went to the leasing office
of her apartment complex and presented the false orders, along with a notice
of intent to vacate, to Ms. YC, a civilian who worked there. Appellant signed
and dated the intent to vacate notice 31 January 2022. The complex admin-
istration began processing Appellant’s paperwork but did not approve the early
termination request and charged Appellant the early lease termination fee.
Appellant’s attempt to terminate her lease early gave rise to the charged spec-
ifications alleging false pretenses and false official statement in violation of
Articles 80 and 107, UCMJ.
II. DISCUSSION
A. Providency of Guilty Plea to False Official Statement
1. Law
This court reviews “[a] military judge’s decision to accept a guilty plea . . .
for an abuse of discretion.” United States v. Forbes, 78 M.J. 279, 281 (C.A.A.F.
2019) (quoting United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)). A
military judge’s legal conclusions about the providency of the plea are reviewed
de novo. United States v. Harris, 61 M.J. 391, 398 (C.A.A.F. 2005).
“[A] military judge must ensure there is a basis in law and fact to support
the plea to the offense charged.” United States v. Soto, 69 M.J. 304, 307
(C.A.A.F. 2011) (citing United States v. Inabinette, 66 M.J. 320, 321–22
(C.A.A.F. 2008)). An abuse of discretion occurs when there is “a substantial
basis in law or fact for questioning the plea.” Inabinette, 66 M.J. at 321–22
(quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991) (additional
citation omitted)). A conviction based on a legal standard that does not consti-
tute an offense is legally insufficient. United States v. Shavrnoch, 49 M.J. 334,
338–39 (C.A.A.F. 1998).
Article 107, UCMJ, states that “[a]ny person subject to this chapter who,
with intent to deceive . . . makes any other false official statement knowing it
to be false; shall be punished as a court-martial may direct.” 10 U.S.C. § 907(a).
Official statements are those that affect military functions,
which encompass matters within the jurisdiction of the military
departments and Services. There are three broad categories of
official statements under this offense: (i) where the accused
makes a statement while acting in the line of duty or where the
statement bears a clear and direct relationship to the accused’s
official duties; (ii) where the accused makes a statement to a mil-
itary member who is carrying out a military duty at the time the
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statement is made; or (iii) where the accused makes a statement
to a civilian who is necessarily performing a military function at
the time the accused makes the statement.
Manual for Courts-Martial, United States (2019 ed.), pt. IV, ¶41.c.(1)(b).
In United States v. Spicer, the United States Court of Appeals for the
Armed Forces (CAAF) set out a framework for determining whether state-
ments qualify as official for the purposes of Article 107, UCMJ. 71 M.J. 470(C.A.A.F. 2013). The CAAF found “that official statements are those that affect
military functions . . . and which encompass[] matters within the jurisdiction
of the military departments and services.” Id. at 473. The court went on to say
“[t]hese include statements based on the standpoint of the speaker, where ei-
ther the speaker is acting in the line of duty or the statements directly relate
to the speaker’s official military duties.” Id. In both Spicer, id. at 475, and
United States v. Capel, 71 M.J. 485, 487 (C.A.A.F. 2013), the CAAF ruled that
statements made to civilian police officers were not official statements for the
purposes of Article 107, UCMJ. This was “because the statements in question
were not pursuant to any military duties on the appellant’s part, nor were the
civilian police officers acting in conjunction with or on behalf of military au-
thorities at the time the statements were made.” United States v. Passut, 73
M.J. 27, 31 (C.A.A.F. 2014) (first citing Spicer, 71 M.J. at 475; and then citing
Capel, 71 M.J. at 487).
Additional factors to be considered in determining whether a
statement is “official” include the circumstances leading up to
the statement, the circumstances surrounding the statement,
whether there is a military interest in the subject matter, and
whether there exists a clear and direct relationship to military
duties.
United States v. Cofer, 67 M.J. 555, 558 (A.F. Ct. Crim. App. 2008) (citing
United States v. Teffeau, 58 M.J. 62, 69 (C.A.A.F. 2003)).
This court has “broad discretion” to reassess a sentence after one or more
specifications are set aside rather than remand the case for a new sentencing
hearing. United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013) (citation
omitted). Our superior court has repeatedly held that if we “can determine to
[our] satisfaction that, absent any error, the sentence adjudged would have
been of at least a certain severity, then a sentence of that severity or less will
be free of the prejudicial effects of error.” United States v. Sales, 22 M.J. 305,
308 (C.M.A. 1986). The elements for determining whether this court can relia-
bly reassess a sentence are set forth in Winckelmann, 73 M.J. at 11–16. This
analysis is based on a totality of the circumstances with the following as illus-
trative factors: dramatic changes in the penalty landscape and exposure, the
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forum, whether the remaining offenses capture the gravamen of the criminal
conduct, whether significant or aggravating circumstances remain admissible
and relevant, and whether the remaining offenses are the type that we as ap-
pellate judges “have experience and familiarity with to reliably determine
what sentence would have been imposed at trial.” Id. at 16.
2. Analysis
The issue in this case is not whether Appellant made a false statement, but
whether that statement was official such that Appellant violated Article 107,
UCMJ. Here, Appellant offered false PCS orders to Ms. YC at the leasing office
of her apartment complex, stated she needed to cancel her lease because she
was subject to a military move, and provided notice of her intent to vacate,
which is the false official statement charged in violation of Article 107, UCMJ.
We conclude that Appellant did not make the statement in the line of duty
and that her notice of intent to vacate did not bear a clear and direct relation-
ship to her military duties as a security forces Airman. Here, Appellant was
acting in her personal capacity, attempting to break a residential lease, of
which the Air Force was not a party. She was not performing any military duty
at the time. Therefore, we do not agree the evidence supports a conclusion that
Appellant was acting in the line of duty. Furthermore, the false statement Ap-
pellant made to her landlord regarding fictional PCS orders that she had no
duty to obey bore no “clear and direct relationship” to any actual official duty
of hers. Finally, her statement was not made to a military member carrying
out military duties, and Ms. YC was not performing a military function at the
time. The fact that the false statement related to false military PCS orders—
orders that Appellant did not create or sign—is not sufficient to conclude the
statement was official for the purpose of this offense. Accordingly, the record
before us clearly demonstrates there is a substantial basis in law for question-
ing her plea, and the military judge abused her discretion by accepting it. The
findings of guilty as to Charge III and its Specification are set aside.
Having set aside Appellant’s conviction for Charge III and its Specification,
we consider whether we may reliably reassess Appellant’s sentence in light of
the factors identified in Winckelmann, 73 M.J. at 15–16. We conclude that we
can.
As appellate military judges, we are familiar with the sentences generally
imposed by military judges for the remaining violations. Although the penalty
landscape has changed, it has not changed dramatically, and the remaining
offenses still capture the gravamen of Appellant’s criminal conduct. The mili-
tary judge sentenced Appellant to one month of confinement for the Article
107, UCMJ, charge that we have set aside. Appellant, however, also received
one month and two months’ confinement, respectively, for the two distribution
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of marijuana specifications, and two months’ confinement for attempt to de-
fraud the apartment complex by false pretenses, with each term of confinement
to run concurrently. She could have received a bad-conduct discharge and as
much as four months of total confinement under the terms of the plea agree-
ment she accepted. Accordingly, we find sentence reassessment is appropriate.
Based on our experience and familiarity with military justice, and taking
all pertinent factors into consideration, we are confident that absent the false
official statement specification, the adjudged sentence still would have in-
cluded at least a bad-conduct discharge, two months of confinement, forfeiture
of $1,130.00 pay per month for two months, and reduction to the grade of E-1.
B. Sentence Severity
1. Law
We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006) (footnote omitted). We “may affirm only such findings
of guilty and the sentence or such part or amount of the sentence, as [we] find
correct in law and fact and determine[ ], on the basis of the entire record,
should be approved.” Article 66(c), UCMJ. “We assess sentence appropriate-
ness by considering the particular appellant, the nature and seriousness of the
offense[s], the appellant’s record of service, and all matters contained in the
record of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim.
App. 2009) (per curiam) (citations omitted). While we have great discretion in
determining whether a particular sentence is appropriate, we are not author-
ized to engage in clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F.
2010) (citation omitted).
2. Analysis
Appellant contends her sentence to two months’ confinement and a bad-
conduct discharge is excessive. We disagree and do not find Appellant’s sen-
tence inappropriately severe considering the record before us. When Appellant
entered into her plea agreement, she knew she could receive a bad-conduct
discharge and as much as four months of confinement. Appellant received an
appropriate sentence because she not only distributed drugs to other military
members, including selling marijuana to another Airman, but she also devised
a plan to defraud the administration of her apartment complex in order to gain
a personal financial benefit and used another Airman in the implementation
of her scheme. After careful consideration of the matters contained in the rec-
ord of trial which were before the military judge, the nature and seriousness of
Appellant’s offenses, and her record of service, we find the sentence as ad-
judged is not inappropriately severe.
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III. CONCLUSION
The findings of guilty as to the Specification of Charge III and Charge III
are SET ASIDE. The Specification of Charge III and Charge III are DIS-
MISSED WITH PREJUDICE. We reassess the sentence to a bad-conduct
discharge, confinement for two months, forfeiture of $1,130.00 pay per month
for two months, and reduction to the grade of E-1. The findings, as modified,
and the sentence, as reassessed, are correct in law and fact, and no additional
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). The findings, as mod-
ified, and the sentence, as reassessed, are AFFIRMED.
FOR THE COURT
FLEMING E. KEEFE, Capt, USAF
Acting Clerk of the Court
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