United States v. Ortiz ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
CRISFIELD, HITESMAN, and GASTON
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Kevin ORTIZ
Lieutenant Junior Grade, U.S. Navy
Appellant
No. 201800375
Decided: 18 March 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Derek D. Butler (arraignment)
Deborah Mayer (trial)
Sentence adjudged 16 August 2018 by a general court-martial con-
vened at Naval Station Norfolk, Virginia, consisting of officer mem-
bers. Sentence approved by the convening authority: confinement for
45 months and a dismissal.
For Appellant:
Matthew J. Flynn, Esq.
Lieutenant Commander Jeremy J. Wall, JAGC, USN
For Appellee:
Lieutenant Timothy C. Ceder, JAGC, USN
Lieutenant Kimberly Rios, JAGC, USN
Judge GASTON delivered the opinion of the Court, in which Chief
Judge CRISFIELD and Senior Judge HITESMAN joined.
United States v. Ortiz, NMCCA No. 201800375
Opinion of the Court
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
GASTON, Judge:
Appellant was convicted, contrary to his pleas, of one specification of
attempted sexual abuse of a child and one specification of attempted sexual
assault of a child, in violation of Article 80, Uniform Code of Military Justice
[UCMJ], 10 U.S.C. § 880 (2012), for communicating indecent language to, and
arranging to meet and have sex with, a fictitious 14-year-old named “Cassie,”
who was an online persona portrayed by Special Agent JS of the Air Force
Office of Special Investigations [OSI].
Appellant asserts four assignments of error [AOEs], 1 all connected with
the fact that the specifications of which he was convicted allege “Cassie,” as
opposed to Special Agent JS, as the object of the attempt offenses: (1) the
specifications violated Appellant’s constitutional right to fair notice to know
what offense and under what theory he would be convicted; (2) the military
judge erred by (a) instructing the members they must find beyond a
reasonable doubt that “Cassie” was an individual believed by Appellant to be
14 years old (as opposed to finding that an actual child under the age of 16
named “Cassie” existed) and (b) prohibiting the defense counsel from arguing
in closing that Appellant should be acquitted of the attempt offenses because
no actual child under the age of 16 named “Cassie” had been proven to exist;
(3) the evidence is legally and factually insufficient to sustain Appellant’s
convictions for attempting to sexually abuse and sexually assault a child
under 16 named “Cassie,” who was not proven to actually exist; and (4) the
military judge abused her discretion in denying Appellant’s motion under
Rule for Courts-Martial [R.C.M.] 917, based on the Government’s failure to
prove a child under 16 named “Cassie” actually existed. We find no prejudi-
cial error and affirm.
1 We have reordered the AOEs.
2
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Opinion of the Court
I. BACKGROUND
As part of Air Force OSI’s proactive efforts to combat Internet-based
crimes against children, Special Agent JS set up a fictitious online persona
named “cassiesoccergirl12” and posted an ad on the “Craigslist” website to
the effect of “Stuck on Langley, bored; hit me up if you’re interested.” 2
Appellant responded to the ad, and a series of Internet-based message
exchanges ensued in which Special Agent JS identified herself as “Cassie,”
told Appellant she lived with her parents, and said her father was in the Air
Force. After the messages became more sexually charged and the two agreed
to meet in person at a future date, Appellant asked, “How young are you,” to
which “Cassie” replied, “14.” 3 Thereafter, Appellant asked for a “full body pic”
and told “Cassie,” among other things, “hmmm I’m trying to see all skin your
whole body, legs, chest, all skin” and “hmm how my lips will feel when I kiss
all over your body.” 4 The two arranged to meet at a hotel on Langley Air
Force Base to go “[a]ll the way,” and “Cassie” told Appellant to bring condoms
to their rendezvous. 5 Appellant was apprehended when he arrived at the
prearranged lodging with condoms in his pocket. When questioned by
investigators, Appellant said “Cassie” had told him she was 14, that he knew
she was underage, and that they had arranged to meet up “to have sex.” 6
The Government subsequently charged Appellant with, among other
things, attempted sexual abuse of a child for sending sexually-charged
messages to “Cassie” and attempted sexual assault of a child for going to the
hotel room to have sex with “Cassie.” The charging language did not specify
that “Cassie,” the alleged child victim of the attempt offenses, was actually a
fictitious online persona operated by Special Agent JS. The specifications of
which Appellant was convicted under Article 80, UCMJ, read as follows:
Specification 1: In that Lieutenant Junior Grade Kevin Ortiz,
U.S. Navy, USS BULKELEY (DDG 84), on active duty, did, on
board Langley Air Force Base, on 21 September 2017, attempt
to commit a sexual act upon “Cassie,” a child who had attained
2 Record at 329.
3 Pros. Ex. 1 at 3.
4 Id. at 4, 6; Record at 511-12.
5 Id. at 8; Record at 293.
6 Pros. Ex. 4.
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Opinion of the Court
the age of 12 years, but had not attained the age of 16 years, to
wit: penetration of her vagina with his penis.
Specification 4: In that Lieutenant Junior Grade Kevin Ortiz,
U.S. Navy, USS BULKELEY (DDG 84), on active duty, did, at
or near Chesapeake, VA, on divers occasions on or about Sep-
tember 2017, attempt to commit a lewd act upon “Cassie”, a
child who had not yet attained the age of 16 years old, to wit:
intentionally communicate indecent language to “Cassie” via
KIK messaging application, to wit: “hmmm I’m trying to see all
skin your whole body, legs, chest, all skin” and “hmm how my
lips will feel when I kiss all over your body,” or words to that
effect.
At trial, at the close of the Government’s case, Appellant’s trial defense
counsel moved for a finding of not guilty on all charges and specifications
under R.C.M. 917, arguing the Government had charged, but not proven, that
an actual child under 16 named “Cassie” existed. The military judge denied
the motion. She reasoned that the specifications’ use of quotations around the
name, “Cassie,” in conjunction with the evidence adduced at trial (which
included the testimony of Special Agent JS), was sufficient to convey that the
child victim alleged in the attempt specifications was a fictitious persona
used by law enforcement to interact with Appellant in the context of an
undercover operation. The military judge further reasoned that the charging
scheme, in conjunction with the discovery provided to the Defense, gave
Appellant adequate notice of the attempt offenses he needed to defend
against at trial.
Subsequently, over Defense objection, the military judge instructed the
members that they must find beyond a reasonable doubt in connection with
certain overt acts that “Cassie” was an individual Appellant believed to be 14
years old, as opposed to an actual child under 16. When the Defense counsel
then attempted to argue in closing for acquittal based on the Government’s
failure to prove an actual child under 16 named “Cassie” existed, the military
judge sustained the trial counsel’s objection, ruling that the argument was
inconsistent with her instructions and thus a misstatement of the law.
Additional facts necessary for resolution of the AOEs are included in the
discussion below.
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Opinion of the Court
II. DISCUSSION
A. Constitutional Right to Notice
Appellant asserts that by alleging a child named “Cassie” as the victim of
the attempt offenses, the Government deprived him of his constitutional due
process right to fair notice, which mandates that he be informed of what
offense and under what legal theory he must defend against. See United
States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010). We disagree.
“The military is a notice pleading jurisdiction.” United States v. Fosler, 70
M.J. 225, 229 (C.A.A.F. 2011) (citing United States v. Sell, 11 C.M.R. 202, 206
(C.M.A. 1953)). Encompassing the notice requirement, the rules of procedure
provide that a specification of a charge need contain only “a plain, concise,
and definite statement of the essential facts constituting the offense charged”
and is sufficient as long as it “alleges every element of the charged offense
expressly or by necessary implication.” R.C.M. 307(c)(3). “The requirement to
allege every element expressly or by necessary implication ensures that [an
accused] understands what he must defend against . . . .” Fosler, 70 M.J. at
229. For attempt offenses, it is not necessary to allege the overt act or the
elements of the underlying “target” offense, so long as there is sufficient
specificity to make the accused aware of the nature of the offense. United
States v. Norwood, 71 M.J. 204, 206-07 (C.A.A.F. 2012) (citing United States
v. Resendiz-Ponce, 549 U.S. 102, 107 (2007)).
The two specifications at issue here satisfy these notice requirements.
They allege that Appellant attempted to commit certain target offenses
(sexual abuse of a child and sexual assault of a child). They include specific
language putting Appellant on notice of the theory of each target offense—
i.e., communicating certain language for the attempted sexual abuse
specification and committing a certain sexual act for the attempted sexual
assault specification. And they specify “Cassie” (including the quotation
marks) as the alleged child under the age of 16 for those target offenses. We
agree with the trial court’s reasoning that the charging scheme for these
attempt offenses, including the use of using quotation marks around the
name, “Cassie,” in conjunction with the information provided in discovery,
left the Defense with no doubt that the victim alleged in these specifications
was a fictitious online persona interacting with Appellant in the context of an
undercover law enforcement operation. Appellant’s civilian defense counsel
admitted as much at trial during his argument for a finding of not guilty
under R.C.M. 917, when he agreed that not only was the Defense “on notice
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Opinion of the Court
of the facts of this case,” 7 but also that the Government did “notify the
accused of all the elements” in the attempt specifications. 8
Based on the language of the specifications, and in light of the evidence
adduced at trial, Appellant was adequately informed as to the nature of the
charges he had to defend against. We find his claim of lack of notice in this
regard to be without merit.
B. Instructions and Argument
Appellant asserts the military judge erred (1) by instructing the members
that for the overt act element of each attempt offense they had to find beyond
a reasonable doubt that “Cassie” was an individual Appellant believed to be
14 years old, as opposed to an actual child under 16; and (2) by not allowing
his trial defense counsel to argue in closing that Appellant should be
acquitted based on the Government’s failure to prove an actual child under
16 named “Cassie” existed. We discuss each in turn.
1. Instructional error
Appellant asserts the trial court erred in its instructions regarding the
overt acts for the two attempt specifications. We review the propriety of
instructions given by the trial court de novo. United States v. Quintanilla, 56
M.J. 37, 83 (C.A.A.F. 2001).
For each specification, the military judge instructed the members they
must find beyond a reasonable doubt that Appellant did a certain act with
respect to “Cassie” (traveling to her on-base lodging for the attempted sexual
assault specification; communicating certain language to her for the
attempted sexual abuse specification) and further described “Cassie” as an
individual “the accused believed to be 14 years old.” Here, as at trial,
Appellant argues this descriptive language is inconsistent with the language
charged in the specifications and therefore erroneous. We disagree.
“The military judge’s instructions are intended to aid the members in the
understanding of terms of art, to instruct the members on the elements of
each offense and to explain any available defenses.” United States v. Wolford,
62 M.J. 418, 420 (C.A.A.F. 2006); see also R.C.M. 920(e). The military judge
has “wide discretion in choosing the instructions to give but has a duty to
7 Record at 454.
8 Id. at 451.
6
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Opinion of the Court
provide an accurate, complete, and intelligible statement of the law.” United
States v. Behenna, 71 M.J. 228, 232 (C.A.A.F. 2012).
Here, the military judge gave the standard “attempt” instructions found
in the Military Judges’ Benchbook, Dep’t of Army, Pam. 27-9 para. 3-4-1
(Sep. 10, 2014) [Benchbook], and appropriately tailored them to the target
offenses and the facts of the case. She instructed that the members must find
beyond a reasonable doubt not only each element of attempt, including that
Appellant committed a certain overt act, but also that he intended every
element of the target offenses, including that the alleged victim was under
the age of 16 years. In instructing on the overt acts, the military judge
appropriately described the act at issue in each specification that pertained to
“Cassie” as “an individual the accused believed to be 14 years old.” Notwith-
standing Appellant’s argument, we view this language not as adding an
additional element not present in the charging language, but as appropriate-
ly tailoring the overt act element of the attempt instructions to the evidence
adduced at trial. Indeed, this language is precisely what was borne out by the
evidence—that Cassie was a fictitious online persona operated by Special
Agent JS who represented herself to be 14 years old in her communications
with Appellant. In using this instructional language, the military judge was
fulfilling her duty to provide an accurate, complete, and intelligible statement
of the law.
We upheld similar instructional language in a case involving similar
attempt charges stemming from a similar undercover law enforcement
operation. United States v. Keeter, No. 201700119, 2018 CCA LEXIS 474
(N-M. Ct. Crim. App. Oct. 3, 2018) (unpub. op.), rev. denied, 78 M.J. 350
(C.A.A.F. 2019). In Keeter, we took an approving view of “the military judge’s
repeated and correct description of the government’s burden to prove that the
appellant believed that Cris [the name of the alleged victim in that case, who
in reality was the persona of an adult law enforcement agent] was under 16.”
Id. at *11 (emphasis in original). We further discussed that the trial court’s
correctly tailored attempt instruction could have been given even greater
clarity “by giving the optional Benchbook instruction on factual impossibility
in the context of attempts.” Id. at *12.
This extra step of clarification is precisely what the military judge did
here: she included an instruction regarding factual impossibility for both
specifications, which the facts in evidence raised. Indeed, that was the very
crux of the matter in this case—that it was impossible for Appellant to
complete the target offenses of the attempt specifications because an actual
14-year-old child named “Cassie” did not exist, but was in fact the fictional
persona of an undercover agent. The military judge’s instructions thus
properly advised the members that Appellant could still be found guilty of
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Opinion of the Court
attempting the target offenses if the facts were as he believed them to be, not
as they actually were. See Manual for Courts-Martial, United States (2016
ed.), pt. IV, ¶ 4.c.(3) (“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.”) (emphasis added).
Accordingly, we find no error in the military judge’s instructions.
2. Curtailing defense argument
Appellant also asserts, here as at trial, that it was error for the military
judge not to allow his trial defense counsel to argue in closing that Appellant
should be acquitted based on the Government’s failure to prove an actual
child under 16 named “Cassie” existed. We disagree.
The members of a court-martial are required to accept and use the in-
structions on the law given them by the military judge. R.C.M. 502(a)(2). As
discussed above, the military judge was correct in her instructions that the
members need only find that “Cassie” was an individual Appellant believed to
be 14, not that an actual child under 16 named “Cassie” existed. The military
judge was therefore proper in prohibiting the Defense from making such an
argument in its summation, which was premised on a misstatement of the
law in direct conflict with her instructions.
C. Legal and Factual Sufficiency
Appellant asserts the evidence adduced at trial is legally and factually
insufficient to support his convictions. We review questions of legal and
factual sufficiency de novo. Art. 66(c), UCMJ; United States v. Washington, 57
M.J. 394, 399 (C.A.A.F. 2002).
Similar to his other AOEs, Appellant contends principally that the evi-
dence failed to meet up with the language charged in the specifications, in
that no actual child under the age of 16 named “Cassie” was proven to exist.
However, these are specifications of attempt under Article 80, UCMJ, not
specifications of the target offenses of sexual abuse of a child and sexual
assault of a child under Article 120b, UCMJ. In order to prove attempt, the
Government need only prove that Appellant specifically intended each
element of the target offenses, which here included that the alleged victim
was under the age of 16, not that he completed them. See 10 U.S.C. § 880(a)
(“An act, done with specific intent to commit an offense under [the UCMJ],
amounting to more than mere preparation and tending, even though failing,
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Opinion of the Court
to effect its commission, is an attempt to commit that offense”) (emphasis
added). Thus, we find Appellant’s belief that “Cassie” was 14 years old
satisfies the pertinent elements of these attempt offenses; proof that an
actual child under 16 named “Cassie” existed is not required. 9
After carefully reviewing the record of trial and considering the evidence
in the light most favorable to the prosecution, we are persuaded that a
reasonable fact-finder could have found all the essential elements of
attempted sexual abuse of a child and attempted sexual assault of a child
beyond a reasonable doubt; hence, the evidence is legally sufficient. See
United States v. Turner, 25 M.J. 324 (C.M.A. 1987) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Furthermore, after weighing the evidence
in the record of trial and recognizing that we did not personally see the
witnesses’ testimony, we are convinced beyond a reasonable doubt of
Appellant’s guilt of these attempt offenses; hence, the evidence is factually
sufficient. See Turner, 25 M.J. at 325.
D. Motion for Finding of Not Guilty
Finally, Appellant asserts the trial court erred in failing to grant a De-
fense motion for a finding of not guilty under R.C.M. 917 for the two
specifications of which Appellant was convicted. As we have found the
convictions themselves to be legally and factually sufficient, we find this AOE
to be without merit. See United States v. Lopez, 2013 CCA LEXIS 579, at *9
(N-M. Ct. Crim. App. Jul 30, 2013) (unpub. op.) (finding a conviction legally
and factually sufficient moots the issue of whether the trial court erred in
denying a defense motion for a finding of not guilty under R.C.M. 917 for that
specification).
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and that no error materially prejudicial to Appellant’s substan-
tial rights occurred. Arts. 59, 66, UCMJ. However, we note that in the
parenthetical descriptions of the specifications under of Charge I, the court-
martial order (CMO) does not accurately reflect that Appellant was charged
9 Appellate counsel’s apparent confusion regarding the law of attempt merits
neither further discussion nor relief. See United States v. Matias, 25 M.J. 356, 363
(C.M.A. 1987).
9
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Opinion of the Court
with and convicted of “Attempted Sexual Assault of a Child” and “Attempted
Sexual Abuse of a Child.” Although we find no prejudice from these scrive-
ner’s errors, Appellant is entitled to have court-martial records that correctly
reflect the content of his proceeding. United States v. Crumpley, 49 M.J. 538,
539 (N-M. Ct. Crim. App. 1998). Accordingly, we order correction of the
records in this case to accurately reflect Appellant’s pleas and convictions for
those attempt offenses. The findings and sentence as approved by the
convening authority are AFFIRMED.
Chief Judge CRISFIELD and Senior Judge HITESMAN concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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