United States v. Lovos ( 2015 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, D.C. KING, A.C. RUGH
Appellate Military Judges
UNITED STATES OF AMERICA
v.
RONALD A. LOVOS
CORPORAL (E-4), U.S. MARINE CORPS
NMCCA 201400102
GENERAL COURT-MARTIAL
Sentence Adjudged: 6 November 2013.
Military Judge: LtCol Nicole Hudspeth, USMC.
Convening Authority: Commanding General, 2d Marine
Logistics Group, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Capt M.D. Jefferson,
USMC.
For Appellant: LT Jonathan Hawkins, JAGC, USN.
For Appellee: Maj Suzanne Dempsey, USMC; Capt Matthew
Harris, USMC.
18 August 2015
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
KING, Judge
A general court-martial, consisting of members with
enlisted representation, convicted the appellant, contrary to
his pleas, of one specification of conspiracy to commit larceny,
one specification of larceny by false pretenses, and one
specification of violating Title 8 U.S.C. § 1325 by entering
into a “sham” marriage to enable his spouse to obtain permanent
residence status, in violation of Articles 81, 121, and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 881, 921, and
934. The members sentenced the appellant to reduction to pay-
grade E-1, fifteen months’ confinement, and a bad-conduct
discharge. The convening authority approved the sentenced as
adjudged.
The appellant raises several assignments of error,
including that the military judge erred by: admitting the
appellant’s involuntary confession; denying the appellant expert
assistance regarding coerced confessions; and admitting human
lie detector testimony. However, the assigned errors are
rendered moot as we hold the evidence is factually insufficient
to sustain the appellant’s conviction. Art. 66(c), UCMJ.
Background
The appellant is a Salvadoran national who came to the
United States when he was thirteen years old. Prior to arriving
in the United States, the appellant did not speak English.
Joining the Marine Corps four years after his arrival in the
United States, the appellant subsequently graduated from Recruit
Training and Motor Transportation Mechanic School. In April of
2010, the appellant joined his unit as a private first class.
The appellant's fire team leader was Lance Corporal (LCpl)
Addae-Mensah (Mensah), a Marine from Ghana 13 years older than
the appellant. Although the appellant had difficulty at that
time getting along with his fellow Marines, LCpl Mensah
immediately became the appellant's “mentor” who the appellant
credited with “looking out for me, you know, in my first days at
the fleet.” 1 The appellant would even spend his weekends at LCpl
Mensah's house, and it was on one of these weekends, three or
four weeks after he arrived at the command, that the appellant
met LCpl Mensah's cousin, Georgia Mensah (Georgia). Georgia was
also from Ghana and in the United States legally attending
school in the Maryland area. Approximately five months later,
the appellant and Georgia married. Over two years later, LCpl
Mensah came under suspicion for facilitating “contract” or
“sham” marriages. Law enforcement agents therefore turned their
attention to the appellant’s marriage to Georgia and the
appellant was subsequently tried and convicted of three offenses
1
Record at 374.
2
related to this marriage. 2 Additional facts necessary for the
resolution of the appellant’s case are included below.
Discussion
The appellant was charged with three offenses stemming from
what the Government alleged was a “sham” marriage. Conviction
on each of the three offenses depended upon the Government
proving, beyond a reasonable doubt, that the appellant’s
marriage to Georgia was a “sham.” On this issue, the members
heard the testimony of the appellant and evidence regarding the
appellant’s statement to law enforcement. A detailed recitation
of each is required for a thorough analysis of the issue.
Testimony of the Appellant
We begin by noting the record indicates that, as a second
language, the appellant clearly had not mastered English. The
appellant described his fluency as follows: “[m]y writing is
decent; my talking is not so well. I understand and its okay. .
. . I can understand basically. Not all of it, there’s a lot of
words that are kind of complicated to me . . . I get drawed [sic
in original] up in conversation and then, you know, people say
something else and then I just get confused.” 3
About four weeks after joining his unit, the appellant went
to a party at LCpl Mensah’s home where he met Georgia. The
appellant also testified that although Georgia was eight years
older than he, she was “cute” and seemed “really interested.” 4
2
Charge I: In that [the appellant] . . . did . . . on or about 26 October
2010, conspire with [Cpl Mensah] and [Georgia] to commit an offense under the
[UCMJ], to wit: larceny of Basic Allowance for Housing, the property of the
United States, and in order to effect the object of the conspiracy the
[appellant] did enter into a marriage with [Georgia].
Charge II: In that [the appellant] . . . did . . . between on or about 26
October 2010 and 1 September 2012, steal by false pretenses U.S. currency of
a value of more than $500.00, property of the U.S. government.
Charge III: In that [the appellant] . . . did . . . on or about 26 October
2010, wrongfully commit marriage fraud by entering into a sham marriage with
[Georgia], a foreign national and citizen of Ghana, for the purpose of
obtaining permanent resident status for the said [Georgia], in violation of
title 8 U.S.C. § 1325, which conduct was of a nature to bring discredit upon
the armed forces.
3
Record at 35.
4
Id. at 376.
3
In fact, the appellant testified that “[w]hen I first met her, I
was like, you know, she’s amazing, you know, I want to be with
her, you know. At that time, all I wanted to do the first day
was, you know, have sex with her. That was the first thing back
then.” 5 The appellant obtained Georgia’s phone number and,
although Georgia returned to Maryland, the appellant spent the
following days “flirting” with her via telephone calls and
texts. 6
Two weeks later, Georgia returned to LCpl Mensah’s
apartment where the appellant went to see her. According to the
appellant, the two spent time getting to know each other which
blossomed into a typical modern-day military courtship. After
the weekend, Georgia returned to Maryland.
On her third visit, in July 2010, the appellant testified
that the courtship intensified and the relationship turned
intimate, the circumstances of which the appellant testified to
in detail. At this point, the appellant testified that he had
fallen in love with Georgia. After spending a few nights with
the appellant, Georgia returned to Maryland.
In September 2010, Georgia made her fourth visit to LCpl
Mensah’s home. During this visit, the appellant testified about
how he purchased an $800.00 ring and proposed to Georgia. The
appellant testified at length to the range of raw emotion he
felt as he decided upon and executed his marriage proposal:
“I’m feeling really excited but at the same time I’m feeling
kind of like what’s going to happen, you know, I didn’t really
know, like, the steps . . . she’s going to be away and, you
know, it’s probably going to be weird at first, you know, I got
to, you know, behave, you know, with her.” 7 After the two
discussed the difficulties of a new military marriage, Georgia
accepted. The two were wed five weeks later, on 26 October
2010, in the local courthouse with ten friends in attendance,
including Cpl Mensah. The appellant described in detail what he
and Georgia were wearing and the defense introduced a picture of
the couple after they said their vows. 8 The appellant and his
wife spent the next three days together and then Georgia
returned to Maryland.
5
Id.
6
Id.
7
Id. at 385.
8
Defense Exhibit H.
4
The following December or January, the appellant testified
that he and his wife drove to New York City, explored the city,
and drove back to Jacksonville. 9 Shortly thereafter, Georgia
returned to school in Maryland. In January 2011, over 90 days
after becoming eligible, the appellant applied for BAH. In
addition, he granted Georgia a General Power of Attorney. 10 The
appellant testified that he also gave his wife cash as needed.
The appellant also filed a joint income tax return with his
wife. 11 In addition, the appellant testified that he purchased
his wife gifts, including a dress, some lingerie, and other
intimate items. Similarly, Georgia purchased gifts for him,
including a rice cooker, lotions, and cologne.
In April of 2011, seven months after they were married, the
appellant deployed to Afghanistan. According to the appellant,
to this point in time, he and Georgia were happy and content in
their new marriage. However, once deployed, the daily contact
dwindled and the appellant testified that his marriage changed:
While I deployed, everything started changing, sir,
due to the fact that I had given her power of attorney
and she started asking me for more papers related to
me like IRS taxes back from, like, 2010, 2009;
information that I didn’t really want to, like, you
know, give to her, but I already given the power of
attorney because, you know, I was like, you don’t need
nothing [sic in original] else, I mean, why else would
you need this. She’s, like, you know, we need to get
this started. I was, like -- because she was trying
to get her [immigration] paperwork started so by the
time I came back, she, you know, we were going to be
able to go up to Raleigh and pretty much apply for her
green card. 12
Georgia persisted in her requests and the appellant became
“annoyed:”
9
This testimony is supported by Prosecution Exhibit 4, the appellant’s bank
records for that period of time, which indicate the appellant was in New York
in January 2011.
10
DE A.
11
DE E.
12
Record at 395.
5
[W]hy can’t we just wait[?] So I was feeling like I
was being, like, annoyed to a point with her because
she started changing the fact that she was being all
nice to me and telling me all these good things about,
you know, I love you, you know, babe, boo, you know,
all these nice things. And then all she wanted to do
was get, you know, information from me. . . . I was
getting really annoyed and upset, sir, at the fact
that she was always proceeded [sic in original] and
pushing it through.” 13
The appellant testified that during the deployment, Georgia
“wasn’t being as nice to me anymore” and the marriage
deteriorated. 14 Georgia’s insistence that the appellant help her
get her green card persisted throughout the deployment and the
appellant eventually relented and provided Georgia some of the
information she needed to “begin the process.” 15
When he returned in October 2011, the appellant and Georgia
signed a lease for an apartment in Jacksonville, North Carolina
and the appellant purchased items needed to live in the
apartment. 16 Georgia was still returning to Maryland to attend
school, but had several personal items in the apartment and
stayed there when she returned to Jacksonville. At this time,
the appellant added Georgia as a joint owner to his bank account
and obtained a bank card for Georgia that was tied to that bank
account. 17 The marriage, however, continued to deteriorate.
In February 2012, the appellant sponsored Georgia for
immigration purposes and, after receiving permission from his
command, drove her to Raleigh, North Carolina for her interview.
During the trip, Georgia was “really sweet” to the appellant:
“[s]he started, like, holding my hand and telling me when are
you getting out of the Marine Corps, you know, what we are going
to do when we get together, don’t worry, you know, I’m
13
Id. at 396
14
Id. at 404.
15
Id. at 397.
16
DE C; Record at 406.
17
Record at 394. This testimony is supported by PE 4, the appellant’s bank
records, which list Georgia as a “Joint Owner” on the appellant’s bank
account beginning January 2012.
6
eventually, you know, we got to stick together.” 18 At the close
of the interview, the appellant called his command and received
permission to spend the rest of the day with his wife. A few
days later, Georgia returned to Maryland.
In June of 2012, the marriage was “[n]ot going so well.” 19
The appellant questioned Georgia about when she was going to
finally move to Jacksonville and Georgia replied “just a few
more weeks.” 20 However, in August of 2012, Marine law
enforcement agents contacted the appellant for the charges now
at issue. He was then interviewed at the Criminal Investigation
Division (CID) by Sergeant (Sgt) Tran and Agent Wilhelm.
Although the appellant wanted to see his wife, once his
interrogation was complete, Sgt Tran instructed the appellant to
“don’t ever talk to [Georgia] again,” and the appellant
complied. 21
The Government offered the appellant’s Servicemembers Group
Life Insurance Election and Certificate, signed on 24 January
2011, which designated his parents as his beneficiaries. 22 In
addition, during cross-examination, the appellant admitted that
his own immigration paperwork erroneously indicated that the
appellant was not married. 23 However, the appellant explained
that he began his immigration paperwork--and thus checked the
block that denoted he was not married--before he and Georgia
were married. By the time Base Legal called him in to sign his
package several weeks later, he had married Georgia.
The appellant also testified that, at the time he married
Georgia, his own citizenship hinged upon his receiving an
Honorable discharge from the military. In response to the
members’ questions, the appellant testified that he had received
no pressure to marry Georgia; that Georgia’s citizenship became
18
Id. at 408.
19
Id. at 411.
20
Id. at 412.
21
Id. at 416-17. The appellant testified at trial that, per Sgt Tran’s
instructions, he had not seen nor spoken to Georgia as of 06 November 2013.
In January 2014, the appellant looked up information online regarding
divorce, but had not taken any steps to divorce Georgia because he wanted to
“see how this thing [trial] goes.” Id. at 417.
22
PE 6 at 7.
23
PE 7 at 3.
7
the “priority of this relationship” just before he deployed; and
that prior to that point, Georgia’s citizenship “never came
up.” 24
The Appellant’s Statement to Law Enforcement
Prior to trial, the Government sought to admit PE 1, a
statement signed by the appellant wherein he confesses to
entering into a sham marriage. At the pretrial hearing, the
Government called Sgt Tran, who testified substantially as
follows:
Sgt Tran became an accredited Marine criminal investigator
on 20 October 2011. On 23 August 2012, she contacted the
appellant’s command and asked that he be escorted down to the
CID building. The appellant arrived at 0955 and she started by
informing the appellant that he was suspected of frauds against
the United States. She then read him his rights verbatim. The
appellant indicated that he understood his rights. Based upon
the appellant’s interaction with her, she had no doubt that the
appellant understood his rights. 25 Sgt Tran testified that she
took notes as the appellant answered her questions but also
testified that she typed the appellant’s answers as he provided
them. In the room with her was Agent Wilhelm, a retired Marine
who was now a civilian CID agent. Once she finished typing the
statement, she asked the appellant to read through it and
initial each paragraph. At the end, she swore the appellant to
the truth of his statement and he signed it. On cross
examination, Sgt Tran testified that she was not aware that
English was the appellant’s second language, but that she had to
explain the meaning of one word to him. 26
The appellant testified on the Government motion to admit
PE 1 substantially as follows: When he arrived at CID, it was
just he and Sgt Tran in the room. They entered a small room
with a table and chairs. Sgt Tran told him that he was being
investigated for marriage fraud and that there were several
people on base “getting contract marriages and stuff. And that
[Cpl Mensah] was being investigated and stuff for setting these
things up.” 27 The appellant didn’t understand all of his rights
24
Record at 436.
25
Id. at 14.
26
Id. at 10-25.
27
Id. at 28.
8
and didn’t know that he needed a lawyer because “I didn’t think
that was like a big deal. Just that, you know, this never
happened to me before.” 28 Moreover, the appellant testified to
his difficulty with English. At the interrogation, the
appellant denied his marriage was a sham and attempted to
provide Sgt Tran much of the information detailed above. 29
Agent Wilhelm then entered the room, sat next to the
appellant, and started smoking an e-cigarette. As the appellant
attempted to answer Sgt Tran’s questions, Agent Wilhelm
continuously interrupted him claiming “that’s not true, that
doesn’t make sense what [sic] I’m answering.” 30 Agent Wilhelm
did not “look calm” and stood up “right next” to the appellant
and raised his voice while accusing the appellant of lying. 31
The appellant continued to attempt to explain his marriage was
legitimate “[b]ut then, you know, every time I try to say
something, he will try to contradict me and say something
else.” 32 The appellant became “scared” because “I was there and
didn’t know what was going to happen after that. And I was
being investigated. And the whole process of it I didn’t know
what was going to happen with me. I was planning to reenlist.
And that moment everything – my whole life just turned in half
and I got really scared.” 33 Agent Wilhelm told the appellant
that Basic Allowance for Housing (BAH) was “what [he] needed,
you know, that’s what you wanted. That’s when I, you know,
started crying and the whole thing.” After that, the appellant
started to “break down and . . . getting migraines.” 34 At this
point, the appellant felt “coerced into saying certain things
about the marriage[,]” and Sgt Tran told the appellant that
“since I’m cooperating, the most I can get is a battalion level
NJP. And she was going to, you know, be a witness for me, if
anything, and that I was being a good guy by, you know, talking
to her and stuff.” 35 The appellant testified once he had been
informed that there was a “whole circle of people marrying
28
Id.
29
Id. at 26-40.
30
Id. at 30.
31
Id.
32
Id.
33
Id. at 32.
34
Id.
35
Id.
9
people from Ghana,” that he felt like he “messed up” and may
have entered into a contract marriage. 36 However, he did not
know of this information before the interview and did not
believe he had entered into a contract marriage prior to the
interview.
The appellant also testified that he did not understand
some of the terms used by Sgt Tran in the statement. When
reviewing the statement, the appellant “had a headache. I had
just finished up, you know, crying and stuff, and I just- –
really wanted to get out of that room. And that was my whole
thing. I was really not expecting nothing really crazy.” 37 As a
result, the appellant didn’t read through the statement, but
instead “just broke down and just wanted to breathe some air,
get out of there.” 38 During the over two hour interview, the
appellant was never offered a break. Finally, the appellant
testified that the statement was not accurate and was more of
what Agent Wilhelm wanted him to say.
On redirect, Sgt Tran admitted that Agent Wilhelm was
smoking and could not recall if the appellant was ever offered a
break once the interview began. In addition, she testified that
the appellant consistently maintained that his marriage to
Georgia was not a contract marriage intended to defraud the
Government. However, after Agent Wilhelm “put his hand on [the
appellant’s] shoulder” and accused him of lying, the appellant
finally stated “All right, I’ll tell you the truth; yes, yes, I
am.” 39
PE 1 details that LCpl Mensah encouraged the appellant to
marry Georgia to “help her out to get citizenship,” and that the
appellant would then receive BAH. 40 The appellant resisted, but
eventually relented and agreed to “marry her and put in the
paperwork before I deployed in 2011; however, once I returned we
would divorce.” 41 According to PE 1, the next time the appellant
saw Georgia was in January 2011 when she “came down to get an
36
Id. at 33.
37
Id. at 34.
38
Id. at 39.
39
Id. at 42.
40
The Government offered no evidence that the appellant conspired with
Georgia to steal BAH.
41
PE 1 at 2.
10
Identification card from DEERS.” 42 Moreover, PE 1 states that
“[s]ince we have been married we have never had sex, and I do
not consider [Georgia] to be a friend of mine.” 43
After hearing argument on the motion, and without providing
any findings of fact or conclusions of law, the military judge
stated simply: “Okay. The defense motion to suppress the
confession is denied. The government motion to admit the
confession is granted.” 44
At trial, Sgt Tran admitted that, during the interview, she
and Agent Wilhelm interrupted the appellant because the
appellant was “giving less than truthful answers.” 45 Sgt Tran
admitted that the appellant told her repeatedly that he loved
Georgia, but that Sgt Tran and Agent Wilhelm continued to tell
the appellant “[w]e don’t want to hear a lie.” 46 In addition,
the defense established that the appellant provided Sgt Tran
essentially the same information as he provided the members when
he testified (e.g., the fact that the appellant and Georgia had
exchanged gifts, that the appellant had taken Georgia on dates
and to dinner on several occasions, and the appellant’s
recitation of his proposal to Georgia).
Although Sgt Tran claimed that the statement contained the
words of the appellant, she admitted that she typed the
statement and that she had to explain one of the words in the
statement to the appellant. 47 Further, Sgt Tran admitted that
she essentially conducted no further investigation into the
accusations against the appellant other than to obtain DEERS and
TRICARE documentation. Sgt Tran was unaware that the appellant
had provided a General Power of Attorney for his wife, that the
appellant and Georgia had signed a lease together, or that
Georgia was a joint account owner of the appellant’s bank
account. Moreover, Sgt Tran failed to interview Georgia 48 and
42
Id. at 3.
43
Id.
44
Record at 47.
45
Id. at 314.
46
Id. at 315.
47
Id. at 323.
48
The record indicates that this was perhaps due to an ongoing investigation
and a fear that other subjects would become aware of the investigation and
flee.
11
failed to obtain the appellant’s phone records. All of this
because, “[w]e had already had a statement and [at] that point,
we had already had the marriage certificate and all the
information from the [Installation Personnel Administration
Center].” 49
Moreover, Sgt Tran explained: “Five to seven minutes [into
the interrogation] we realized that he wasn’t being as truthful
as we would’ve hoped he would have initially been. At that
point, that is when Investigator Wilhelm asked him a direct
question: Was he involved in a contract marriage? He said no
and that’s when they went back and forth asking the same
question in order for Lovos –- Corporal Lovos to understand that
we were not just going to go away. We knew what was going on
and it was time for him to be truthful about what was
happening.” 50 The interrogation was not recorded.
At trial, the appellant repeated for the members much of
what he testified to during the pretrial hearing. In addition,
the appellant informed the members that Agent Wilhelm:
kept on cutting me off every time I tried to answer
something, he always cut me off and he’s like, you
know, all that doesn’t make sense, you know we got,
you know, these things going on against you and so on,
and so on; pretty much trying to make me feel guilty
or try to make me look like an idiot. Even though I
was trying to say something, I say it like five times.
And they kept saying no; both of them, like, it
doesn’t make sense, like, almost trying to make me put
words in this little thing that had happened. 51
When asked how this made him feel, the appellant responded:
I was feeling really bad, sir. I ended up getting a
migraine. I even cry. . . . Agent Wilhelm, he ended
up putting his hand on me. And he was not just,
handling that, he, like, hold me tight, and then he,
like, slammed me in the back of the -- you know what,
49
Record at 337.
50
Id.
51
Id. at 413.
12
that doesn’t make sense, you know, trying to be, like,
that. 52
When asked why he signed the statement if it was inaccurate, the
appellant replied:
The fact that I didn’t read through like I was
supposed to. I just wanted to get out of the way and
I trusted Agent Tran with everything, with the whole
conversation that we were having. I trusted her so I
was not expecting this to get out of hand. Plus, the
promises that agent Tran said . . . [that] if anything
happens, you know, you’re probably just going to get a
battalion level NJP if they find you, you know, guilty
of all this stuff, you know, don’t worry about it,
and so on.” 53
The first time the appellant contemplated divorce was when
he was in the interview room after “[t]hey pretty much say I
have a contract marriage,” which caused the appellant to “feel
guilty, like I really, you know, messed up.” 54
The Government also offered uncontested evidence that the
appellant had married Georgia and that he was receiving BAH.
Neither Cpl Mensah nor Georgia testified. 55 In addition to the
appellant, the defense called Chief Warrant Officer 3 (CWO3)
Blanton, who supervised the appellant for seven months prior to
deployment and the six months on deployment. CWO3 Blanton
opined that the appellant was a good Marine, an “honorable man,”
a “truthful person,” a “law-abiding citizen,” and when asked
whether the appellant was a leader or a follower, CWO3 replied
“certainly a follower.” 56
52
Id.
53
Id. at 414-15.
54
Id. at 416.
55
Cpl Mensah received Article 15 punishment for conspiring to “arrange
fraudulent marriages” and was separated from the Marine Corps with an
Honorable discharge. Encl 10 to Clemency letter dtd 24 Feb 14; DD Form 214
attached to Appellant’s Motion to Attach dtd 2 Jun 2015.
56
Record at 367.
13
Factual Sufficiency
Under Article 66(c), UCMJ, we must conduct a de novo review
of factual sufficiency of each case before us. 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 allowances for not having
personally observed the witnesses,” we are ourselves convinced
of the accused'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 independent
determination as to whether the evidence constitutes proof of
each required element beyond a reasonable doubt.” Washington,
57 M.J. at 399.
We are convinced that the Government offered sufficient
proof that the appellant was married to Georgia and that he
received BAH as a result. The focus of our analysis is whether
we are convinced beyond a reasonable doubt that the appellant
knowingly entered into a “sham” marriage with Georgia. If not,
the appellant cannot be guilty of any of the offenses charged. 57
To prove this element, the Government relied almost exclusively
upon PE 1. 58 However, we find ample evidence in the record to
raise reasonable doubt.
First, we note that the appellant gave Georgia a General
Power of Attorney and total access to his bank accounts. PE 1
paints a picture of a Marine who wanted nothing to do with
Georgia, only reluctantly agreed to a contract marriage with
her, and then only after insisting upon divorcing her when he
returned from deployment. It is difficult to imagine that such
a Marine would marry a woman he neither knew well nor liked, and
then grant that near-stranger absolute control over his legal
57
Charges I and II required the Government to prove that the appellant
intended to obtain the BAH with a “criminal false pretense,” which the
military judge instructed the members was “any misrepresentation of fact by a
person who knows it to be untrue which is intended to deceive which does, in
fact, deceive.” Id. at 443. Charge III required the government to prove
that the appellant “wrongfully and knowingly married [Georgia] for the
purpose of evading immigration laws.” Id. at 444.
58
When walking the members through the charges during closing argument, the
trial counsel focused on PE 1, stating, “[o]nce again, this is all in his
confession.” Id. at 456.
14
affairs while he deployed to Afghanistan and then absolute
access to his bank account.
Second, and as mentioned, PE 1 states that the appellant’s
intention was to divorce Georgia as soon as he returned from
deployment. Yet, when he was interrogated nearly two years
later, he was not only still married to her, he had leased an
apartment with her, filed a joint income tax return with her,
provided her funds for medical appointments, and ensured that
Georgia was enrolled in TRICARE.
Third, the appellant’s bank records disclose that the
appellant was financially in good health when he married
Georgia. There is no indication that he had insufficient funds
or had ever overdrawn his account. Moreover, when asked what he
did with the BAH he received, the appellant replied “It’s stayed
in the bank.” 59 At the time he was interrogated, the appellant
had several thousand dollars in his bank account, lending
credence to the appellant’s response. 60 While certainly not
dispositive, we nonetheless discern no specific motive for the
appellant to steal money by engaging in a sham marriage.
Fourth, the appellant had a great disincentive for engaging
in such a reckless scheme, testifying that if he did not receive
an Honorable discharge, he would imperil his own U.S.
naturalization process and face deportation.
Fifth, although our holding does not require that we
resolve whether or not the appellant’s “confession” was the
“product of an essentially free and unconstrained choice by its
maker[,]” United States v. Bubonics, 45 M.J. 93, 95 (C.A.A.F.
1996), we have grave misgivings about PE 1. Sgt Tran admits
that the appellant started out providing much of the same
information he did at trial and evidence existed to prove much
of what he was saying. However, Sgt Tran and Agent Wilhelm,
convinced of the appellant’s guilt, declined to verify any part
of the appellant’s story and instead, verbally and physically
beset the appellant until the appellant finally “broke down.”
The statement that Sgt Tran then produced -- containing at least
one word the appellant didn’t even understand -- is rife with
implications that are demonstrably false.
59
PE 1 at 3.
60
PE 4 at 110 and 118.
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Conclusion
For these reasons, we are not convinced beyond a reasonable
doubt that the appellant intended to obtain BAH through
deception or wrongfully and knowingly married Georgia for the
purpose of evading immigration laws, we therefore find the
evidence factually insufficient to support the appellant’s
Convictions and set aside the findings and the sentence. Art
66(c). The charges are dismissed with prejudice.
Senior Judge FISCHER and Judge RUGH concur.
For the Court
R.H. TROIDL
Clerk of Court
16