United States v. Martinez ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39973
________________________
UNITED STATES
Appellee
v.
Jonathan M. MARTINEZ
Airman (E-2), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 6 April 2022
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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 Sep-
tember 2020: Dishonorable discharge, confinement for 36 months, re-
duction 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 of the National Association of Criminal
Defense Lawyers.
Before LEWIS, POSCH, and ANNEXSTAD, Appellate Military Judges.
Senior Judge LEWIS delivered the opinion of the court, in which Senior
Judge POSCH and Judge ANNEXSTAD joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Martinez, No. ACM 39973
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 dis-
charge, 36 months of confinement,3 reduction to the grade of E-1, and a repri-
mand. 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 Amendment4 and Sixth Amendment5 rights by
denying a defense request for an instruction that a guilty verdict required una-
nimity; (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 re-
questing a unanimous verdict instruction, arguing such an instruction was re-
quired 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
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 in-
corporated 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 Ar-
ticles 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.
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.
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United States v. Martinez, No. ACM 39973
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 unan-
imous. See R.C.M. 922(e) (prohibiting polling of members about their delibera-
tions 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 unan-
imous 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-mar-
tial members’ selection, conduct during proceedings, and deliberations.8 Appel-
lant connects Ramos, Lambert, and other precedents9 together to argue the
military judge’s non-unanimous verdict instruction violated the Constitution.10
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 deci-
sions 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 non-
capital court-martial within the territorial limits of the United States violates
the Sixth Amendment. According to amicus, when Congress statutorily pro-
vided for a non-unanimous verdict, it contravened “what the Constitution com-
mands,” namely, a unanimous verdict. Amicus also alleges a procedural error
7 Mil. R. Evid. 606(b) prohibits a court-martial member from testifying during an in-
quiry 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 influ-
ence 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 con-
currence of two-thirds 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. Ac-
cording 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
warrant further discussion or relief. See United States v. Matias, 25 M.J. 356, 361
(C.M.A. 1987).
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United States v. Martinez, No. ACM 39973
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 in-
struction 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 court-martial 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 courts-
martial. It did not analyze whether an impartial jury and impartial court mem-
bers are identical under the Constitution. Lambert described the right to im-
partial 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 Establish-
ment, including regulations, procedures, and remedies related to military dis-
cipline.’” 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 courts-martial or military com-
missions); United States v. 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 CCA LEXIS 181, at *50–57 (A.F. Ct.
Crim. App. 25 March 2022) (unpub. op.) (finding Ramos did not require unan-
imous court-martial verdicts).
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United States v. Martinez, No. ACM 39973
After considering the remaining two issues, we find no error that materially
prejudiced Appellant’s substantial rights. We affirm the findings and sen-
tence.11,12
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
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 sen-
tence. 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 sus-
pended 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 CCA LEXIS 181, at *10 (A.F. Ct. Crim. App. 23 Apr. 2019) (unpub.
op.); United States v. Edwards, 39 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 influ-
enced 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 ac-
tions 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.
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United States v. Martinez, No. ACM 39973
state that the message was from a “new” phone number or account. Once con-
tact was established, Appellant used information he knew to convince the tar-
geted 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 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. Appel-
lant 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 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 at-
tempted to identify who was sending her messages.
13 By the time of Appellant’s trial, AL had separated from the Air Force.
14 Quoted messages include misspellings and punctuation errors that we have not cor-
rected. We made appropriate modifications using brackets.
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United States v. Martinez, No. ACM 39973
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 at-
tempted 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 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 inter-
view 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 deter-
mined 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 subpoe-
naed records from the Internet service provider that showed one IP address
was at Appellant’s residence and another matched a location on Hurlburt 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.
15 By the time of Appellant’s trial, GMV had separated from the Air Force.
7
United States v. Martinez, No. ACM 39973
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 photo-
graphs that AL sent on 1 February 2019.
SA CC forwarded Appellant’s devices to the Department of Defense Cyber-
crime 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 pic-
tures 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 break-in 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 applica-
tion. 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 super-
visor testified. Both Appellant and his supervisor worked in a different squad-
ron 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 civil-
ian witnesses testified that they saw Appellant smoking a blunt. One witness
described the blunt as a cigar with the tobacco removed and replaced with ma-
rijuana.
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United States v. Martinez, No. ACM 39973
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 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. Appel-
lant 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 suf-
ficient. 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 Appel-
lant’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 con-
tingent 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 Ap-
pellant also argues that any ambiguity in what “property” is covered by the
wire fraud statute should be resolved in favor of lenity consistent with Cleve-
land v. United States, 531 U.S. 12, 25 (2000).
16 Appellant does not challenge the sufficiency of the evidence underlying his convic-
tions for communicating a threat and wrongful use of marijuana.
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 inti-
mately 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 the
military judge denied. We find these arguments do not warrant further discussion or
relief. See Matias, 25 M.J. at 361.
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United States v. Martinez, No. ACM 39973
For the attempted wire fraud convictions, Appellant argues there was in-
sufficient 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 at-
tempted 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 assess-
ment 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 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 con-
viction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (internal quo-
tation 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, im-
partial look at the evidence,” applying “neither a presumption of innocence nor
a presumption of guilt,” and we “must make [our] own independent determi-
nation 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
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United States v. Martinez, No. ACM 39973
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 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 influ-
ence, 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 fraud statute “had its origin in the desire to protect individual prop-
erty 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., dissent-
ing) (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 con-
stitute 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).
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United States v. Martinez, No. ACM 39973
For the attempted wire fraud specifications involving AW and GMV, a vio-
lation 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 ef-
fect the commission of the intended offense except that AW and GMV did not
send nude photographs to Appellant which prevented completion of the of-
fense. See MCM, pt. IV, ¶ 4.b. “A person who purposely engages in conduct
which would constitute the offense if the 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 pre-
sented overwhelming evidence of Appellant’s scheme to defraud AL by imper-
sonating AW in order to obtain nude photographs of AL. Appellant used a text
messaging application, which used the Internet, implicating wire communica-
tions. 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 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 maga-
zine paid AW, and induced a belief in AL that she would be paid thousands of
12
United States v. Martinez, No. ACM 39973
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 supervi-
sor testified that Appellant showed a “deep infatuation” for AL, which provides
additional support that the object of his scheme was to obtain nude photo-
graphs 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 intan-
gible 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 prop-
erty” and “exclusivity is an important aspect of confidential business infor-
mation 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 de-
fining feature of most property is the right to control the 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 busi-
ness 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 infor-
mation 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,
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.
13
United States v. Martinez, No. ACM 39973
those cases also did not involve a scheme like this one.19 Therefore, Appellant’s
challenges appear to raise an issue of first impression.
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 pho-
tos. We distinguish this case from the set-aside convictions in Kelly or Cleve-
land.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 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 ex-
clusivity as an essential element of this wire fraud conviction.22
19 See e.g., United States v. Walton, No. ACM 40004, 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 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, 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.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 Ap-
pellant was convicted of communicating a threat to injure AL’s reputation under Arti-
cle 115, UCMJ, 10 U.S.C. § 915. That statute reads, “Any person subject to this chapter
14
United States v. Martinez, No. ACM 39973
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 Appel-
lant’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 rea-
sonable factfinder could conclude that the Government proved the essential
elements of both specifications of attempted wire fraud.
There was overwhelming evidence that Appellant committed overt acts in
an attempt to devise a scheme where AW and GMV would send him nude pho-
tos. A reasonable factfinder could have concluded that Appellant’s impersona-
tion 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 de-
signed 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 rea-
sonable factfinder could have concluded the acts amounted to more than mere
preparation and would have tended to bring about the commission of the of-
fense of wire fraud.
We find Appellant’s challenge that there was insufficient evidence of pre-
existing nude photos misplaced. This is not an element of the charged at-
tempted 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 suf-
ficient evidence that Appellant believed those attendant circumstances at the
time of the charged offense. Viewing the evidence in the light most favorable
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).
15
United States v. Martinez, No. ACM 39973
to the Prosecution, a 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 in-
tent 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.” Ap-
pellant 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 be-
cause 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 the nature and extent of the messages Appellant exchanged with GMV
and the testimony of the witnesses, a reasonable factfinder could have con-
cluded Appellant had the requisite specific intent to commit wire fraud by ob-
taining 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 be-
yond a reasonable doubt. Additionally, having weighed the evidence in the rec-
ord of trial and having made allowances for not having personally observed the
witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt.
16
United States v. Martinez, No. ACM 39973
B. Preemption
Appellant argues that the wire fraud and attempted wire fraud specifica-
tions were preempted by Articles 106 and 121, UCMJ, 10 U.S.C. §§ 906, 921.23
The Government argues that the UCMJ does 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. Beni-
tez, 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 articles of the code, another offense may not be created
and punished under Article 134, UCMJ, by simply deleting a vi-
tal 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 preemp-
23 Appellant raises this assignment of error “in the alternative” to his other assign-
ments 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, 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.
17
United States v. Martinez, No. ACM 39973
tion doctrine. In addition, it must be shown that Congress in-
tended 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. Erick-
son, 61 M.J. 230, 233 (C.A.A.F. 2005).
Accordingly, the preemption doctrine only precludes prosecution under Ar-
ticle 134, UCMJ, where two elements are met: “(1) ‘Congress intended to limit
prosecution for . . . a particular area’ of misconduct ‘to offenses defined in spe-
cific 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 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 per-
missible 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 ele-
ment from an enumerated UCMJ offense.” Id.The elements of an Article 106, UCMJ, 10 U.S.C. § 906, impersonation of-
fense involving intent to defraud are: (1) that the accused impersonated an
officer, noncommissioned officer, or petty officer, or an agent of superior au-
thority 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 organi-
zation 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).
18
United States v. Martinez, No. ACM 39973
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 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 bad-conduct 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.
Appellant argues that impersonation offenses with an intent to defraud ex-
clude impersonation of those enlisted members below the grade of a noncom-
missioned 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).
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/re-
port_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.
19
United States v. Martinez, No. ACM 39973
However, the specifications in this case are not mere impersonation of-
fenses. 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 his-
tory, 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 re-
quired 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.
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. There-
fore, 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 us-
ing false pretenses to Article 121, UCMJ. The first decision stated, “An exam-
ination 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, embez-
zlement, 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 per-
suaded, 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 communica-
tions; and (2) even if Congress originally intended to consolidate all “criminal
conversion offenses,” the substantial revisions in 2016 show it abandoned that
20
United States v. Martinez, No. ACM 39973
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 obtain-
ing of services through fraud; and (3) Article 124, UCMJ, 10 U.S.C. § 924, crim-
inalizes 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 communica-
tions 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 leg-
islative history of Article 121, UCMJ. However, neither case involved preemp-
tion 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 fraud offenses do not compose a residuum of ele-
ments of Article 121, UCMJ. Under Article 121, UCMJ, there is no require-
ment for the Government to prove use of wire communication, a “devise a
scheme” element, or a “specific intent to commit wire fraud” element. Addition-
ally, 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 addi-
tional element—that the appellant defrauded a financial institution—and this
showed there was not a residuum of the elements of larceny. Id. at 843.
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.
21
United States v. Martinez, No. ACM 39973
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 spe-
cific 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. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.27
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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 dis-
cussed 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 re-
cording files of the proceedings were not playable, though the certified transcript in-
cludes 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 tran-
script.
22