United States v. Eppes

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 38881
________________________
UNITED STATES
Appellee
v.
Tyler G. EPPES
Captain, U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 21 February 2017
________________________
Military Judge: Shaun S. Speranza (sitting alone).
Approved sentence: Dismissal, confinement for 10 years, forfeiture of all pay
and allowances, and a fine of $64,000, with an additional 3 years of confine-
ment if the fine in not paid. Sentence adjudged 24 April 2015 by GCM convened
at Joint Base Andrews, Maryland.
For Appellant: Captain Annie W. Morgan, USAF; and William E. Cassara, Es-
quire.
For Appellee: Major Jeremy D. Gehman, USAF; and Gerald R. Bruce, Esquire.
Before DUBRISKE, HARDING, and C. BROWN, Appellate Military Judges
Senior Judge DUBRISKE delivered the opinion of the Court, in which Judges
HARDING and C. BROWN joined.
________________________
This is an unpublished opinion and, as such, does not serve as prece-
dent under AFCCA Rule of Practice and Procedure 18.4.
________________________
United States v. Eppes, No. ACM 38881
DUBRISKE, Senior Judge:
Consistent with his pleas pursuant to a pretrial agreement, Appellant was
convicted by a military judge sitting alone of conspiracy, false official state-
ment, larceny of both military and non-military property, fraud against the
United States Government, and conduct unbecoming an officer, in violation of
Articles 81, 107, 121, 132, and 133, UCMJ, 10 U.S.C. §§ 881, 907, 921, 932,
933. Additional specifications for false official statement were dismissed by the
Government upon acceptance of Appellant’s guilty plea. The Government also
agreed as part of the pretrial agreement that it would not attempt to prove up
allegations that Appellant was responsible for the theft of approximately
$65,000.00 in legal currency from a deployed location.
Appellant was sentenced to a dismissal, confinement for ten years, forfei-
ture of all pay and allowances, and a fine of $64,000.00, with an additional
three years of confinement if the fine is not paid. The convening authority ap-
proved the sentence as adjudged.
Appellant raises seven issues on appeal: (1) the military judge erred in fail-
ing to suppress evidence obtained during various searches of Appellant’s per-
son, personal bags, vehicle, and off-base residence, as well as evidence seized
from Appellant’s government computers, communication devices, and work
spaces; (2) his plea to conspiring to violate a lawful general regulation was im-
provident; (3) his plea to one specification of conduct unbecoming an officer was
improvident; (4) a conduct unbecoming an officer specification alleging Appel-
lant improperly transferred monies into the United States fails to state an of-
fense; (5) the convening authority erred in summarily denying Appellant’s re-
quest for deferral of forfeitures; (6) his sentence is inappropriately severe; and
(7) various charges are either multiplicious or the charging amounted to an
unreasonable multiplication of charges.
As we find no error substantially prejudices a substantial right of this Ap-
pellant, we now affirm.
I. BACKGROUND
Appellant, a special agent with the Air Force Office of Special Investiga-
tions (AFOSI), engaged in frequent foreign travel while providing counter-in-
telligence support to Air Force Special Operations Command forces. The na-
ture of his duties allowed Appellant to travel with very little oversight by his
chain of command. After completion of this assignment, Appellant was com-
petitively selected to provide personal security protection to senior Air Force
leaders, which again required significant travel at government expense.
The majority of the charged offenses surrounded Appellant’s submission of
fraudulent travel vouchers over the course of almost four years. With regard
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United States v. Eppes, No. ACM 38881
to some of the vouchers, Appellant travelled as claimed on the voucher, but
manipulated his travel dates, expenses, or modes of transportation to obtain
additional reimbursement from the United States Government to which he
was not entitled. Some travel vouchers, however, were entirely fraudulent as
Appellant did not engage in government travel as claimed. In total, Appellant
submitted at least 41 fraudulent claims resulting in over $80,000.00 in loss to
the United States.
In addition to his fraudulent travel, Appellant filed false claims against the
United States Government for a permanent change of station move and vehicle
damage. Appellant also stole two government cameras, valued at approxi-
mately $4,969.00 each, selling one of them to a college friend for $1,150.00.
While committing fraud against the United States Government, Appellant
also submitted fraudulent claims in the amount of $91,000.00 to a commercial
insurance company for personal property he alleged was stolen from his resi-
dence. To facilitate at least $47,000.00 of this fraud, Appellant created false
documents to support the loss of the property or inflate its value.
Appellant’s fraudulent activity came to light when a manager at a hotel in
Dallas, Texas, contacted Appellant’s office at the Pentagon. Appellant was
scheduled to have his wedding at the hotel, but promoted the event as an offi-
cial Air Force function given his position within the Pentagon. In addition to
demanding additional security measures for his event, Appellant requested he
and his guests receive tax-exempt status for all state taxes.
Appellant, unhappy with the service provided by the hotel, eventually in-
formed the hotel manager that he would use his official position to “blacklist”
and “classify” the hotel, thereby limiting the hotel’s ability to accept govern-
ment travelers. Concerned about the potential loss of government business, the
hotel manager contacted one of Appellant’s co-workers, another AFOSI special
agent, who eventually relayed the complaint to Appellant’s commander. When
the commander contacted Appellant about the complaint, Appellant informed
her the complaint was a misunderstanding and would be resolved.
Notwithstanding Appellant’s assurances, a decision was made to further
investigate the allegations Appellant had abused his position or authority.
Prior to speaking with Appellant, the assigned AFOSI investigator interviewed
hotel employees and secured documents showing Appellant fraudulently ob-
tained tax-exempt status for his wedding. The investigating agent also discov-
ered during a background check that Appellant had previously been subjected
to discipline for falsifying travel orders.
Additionally, when interviewing Appellant’s co-workers, the investigator
discovered Appellant had created false invitational travel orders for the co-
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United States v. Eppes, No. ACM 38881
worker to attend Appellant’s wedding as a member of Appellant’s personal se-
curity team. Additional false documents were discovered in a file folder found
in a desk at the Pentagon office Appellant shared with multiple co-workers.
Based on all of this information, the AFOSI investigator obtained a search war-
rant for Appellant’s off-base residence, which yielded additional evidence of
fraudulent activity by Appellant.
Additional facts necessary to resolve the assignments of error are provided
below.
II. DISCUSSION
A. Improper Searches and Seizures
As he did at trial, Appellant claims on appeal that the Government violated
his Fourth Amendment 1 rights in executing a number of searches and seizures
of evidence during their investigation of allegations against Appellant. We ad-
dress each aspect of this assignment of error in turn below. While Appellant’s
suppression motion would have normally been waived by his guilty plea, his
pretrial agreement conditionally preserved the right to raise this issue on ap-
peal. 2
We review a military judge’s denial of a suppression motion under an abuse
of discretion standard and “consider the evidence ‘in the light most favorable’
to the prevailing party.” United States v. Rodriguez, 60 M.J. 239, 246–47
(C.A.A.F. 2004) (quoting United States v. Reister, 44 M.J. 409, 413 (C.A.A.F.
1996)). In performing our review, “we review fact-finding under the clearly-
erroneous standard and conclusions of law under the de novo standard.” Id.
(quoting United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). On mixed
questions of law and fact, “a military judge abuses his discretion if his findings
are clearly erroneous or his conclusions of law are incorrect.” Id. “The abuse of
discretion standard calls for more than a mere difference of opinion. The chal-
1 U.S. Const. amend. IV.
2 We once again caution servicemembers facing court-martial, trial practitioners, staff
judge advocates, and convening authorities about the pitfalls of accepting conditional
offers to plead guilty when the resolution of the underlying issue is not case dispositive.
See generally, United States v. Phillips, 32 M.J. 955 (A.F.C.M.R. 1991). Here, for ex-
ample, the suppression of evidence as requested by Appellant would not have pre-
vented the Government from going forward on various charges related to Appellant’s
travel fraud and misuse of position. The limited record of trial from Appellant’s guilty
plea, however, restricts our ability to assess how the challenged evidence identified
during motion practice ultimately impacted the offenses charged in this case.
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United States v. Eppes, No. ACM 38881
lenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erro-
neous.” United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (citations and
internal quotation marks omitted).
After taking a significant amount of evidence on the Defense’s motion to
suppress evidence at trial, the military judge issued a 29-page written ruling
containing comprehensive findings of fact and conclusions of law. We adopt the
military judge’s factual findings as they are not clearly erroneous. See United
States v. Robinson, 58 M.J. 429, 433 (C.A.A.F. 2003).
Given our determination regarding the military judge’s factual findings, we
are left to examine whether the military judge properly applied the correct law
to the factual matters developed from Appellant’s case. Overall, we find the
searches and seizures in this case comport with the constitutional requirement
of reasonableness; thus, the military judge did not abuse his discretion.
1. Search of Appellant’s Government Office on 29 November 2012
Shortly after AFOSI began investigating Appellant for his conduct with the
Dallas hotel, Appellant’s co-worker, SP, who was also an AFOSI special agent,
found fraudulent travel documents in a file folder located in a drawer of a gov-
ernment desk Appellant shared with co-workers at the Pentagon. Special
Agent SP discovered the documents when looking for a memorandum for rec-
ord (MFR) Appellant had prepared to justify expenses for government travel
taken by Appellant and some of his co-workers. Appellant had previously in-
formed Special Agent SP that he believed he had left the MFR in the office
before he departed for leave to attend his wedding. Special Agent SP needed
the MFR to allow an enlisted co-worker to file a travel voucher for payment
which had been previously rejected. While a label affixed to the file folder ref-
erenced a “wedding shower” in Dallas, Texas, Special Agent SP believed the
MFR could have been included in the folder as the dates on the label corre-
sponded to the dates for the travel covered by Appellant’s MFR. The MFR was
not found in this particular file folder, but was later located by Special Agent
SP in the same desk drawer.
While Appellant acknowledges in his brief that his expectation of privacy
in a shared desk within a non-private government office is likely limited, he
claims he still retained a privacy interest in the personal items stored in this
desk such as the “closed” file folder in this case. Appellant also questions the
military judge’s finding that Special Agent SP’s opening of the folder was for
work-related purposes. In particular, Appellant notes that even if the initial
examination of the folder was non-investigatory and administrative in nature,
Special Agent SP should have stopped his examination of the folder when he
realized the fraudulent nature of the first document and immediately sought a
search warrant.
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United States v. Eppes, No. ACM 38881
Examining the specific facts of this case, we have significant doubt as to
Appellant’s claim of a reasonable expectation of privacy in a file folder con-
tained in a shared government desk. See O’Connor v. Ortega, 480 U.S. 709,
717–18 (1987) (noting that a government employee’s expectation of privacy in
the workplace is limited and that a government office “is seldom a private en-
clave free from entry by supervisors [and] other employees . . . .”); see also
United States v. Battles, 25 M.J. 58, 60 (C.M.A. 1987) (finding no reasonable
expectation of privacy in berthing area on naval vessel or in an unsealed and
open box located within the vessel’s common spaces); see also United States v.
Neal, 41 M.J. 855, 860 (A.F. Ct. Crim. App. 1994) (questioning whether a rea-
sonable expectation of privacy exists in an open locker located in a common
area). We also discount Appellant’s challenge to the military judge’s finding
that Special Agent SP’s examination of the folder was for non-investigatory,
work-related purposes and therefore proper. See generally City of Ontario v.
Quon, 560 U.S. 746, 761 (2010).
We need not address these issues in depth here, however, as the evidence
from the file folder, which was not used in support of any of the charged of-
fenses, did not taint subsequent searches, including the primary search of Ap-
pellant’s residence as detailed below. 3 While the evidence obtained from Spe-
cial Agent SP’s examination of the folder was included in the probable cause
affidavit used to secure the civilian search warrant of Appellant’s residence,
we find the Government already had sufficient information to secure the war-
rant prior to Special Agent’s SP’s review of material in Appellant’s shared desk.
In particular, we note the Government was already aware of Appellant’s sub-
mission of fraudulent state tax exempt forms to the hotel in Dallas, and had
been provided with copies of false travel orders by one of Appellant’s co-work-
ers who traveled to Appellant’s wedding. Additionally, the Government had
knowledge of Appellant’s previous attempts to falsify travel orders. As we are
confident probable cause would have still existed without the evidence uncov-
ered by Special Agent SP, we decline to grant Appellant relief on this particular
claim. See United States v. Gallo, 55 M.J. 418, 421 (C.A.A.F. 2001) (courts may
3Appellant’s office was later search by criminal investigators without a search warrant
under the theory Appellant had no reasonable expectation of privacy in a shared gov-
ernment office. Appellant does not directly challenge on appeal any of the evidence
derived from this investigative step. We note multiple government computers used by
Appellant and his co-workers were seized during this search. To the extent Appellant
suggests the Government improperly obtained evidence from the search of these com-
puters, we reject this claim. See United States v. Larson, 66 M.J. 212, 215 (C.A.A.F.
2008).
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United States v. Eppes, No. ACM 38881
sever improperly obtained information from affidavits and examine the re-
mainder to determine if probable cause still exists).
2. Search of Appellant’s Residence on 7 December 2012
Appellant next argues the search of his off-base residence on 7 December
2012 was invalid as the warrant issued by a civilian judge was overbroad in
that: (1) it lacked particularity with respect to things to be seized; and (2) it
permitted the Government to search for and seize government property even
though there was no probable cause to believe such property was evidence or
fruits of a crime committed by Appellant. 4
The Fourth Amendment’s requirement that a warrant particularly describe
the scope of a search prevents the government from engaging in “a general,
exploratory rummaging in a person’s belongings.” Coolidge v. New Hampshire,
403 U.S. 443, 467 (1971). The specific description of things to be seized and the
place to be searched “eliminates the danger of unlimited discretion in the exe-
cuting officer’s determination of what is subject to seizure.” United States v.
Greene, 250 F.3d 471, 476–77 (6th Cir. 2001) (quoting United States v.
Blakeney, 942 F.2d 1001, 1026 (6th Cir. 1991)). To meet this requirement, a
“warrant must enable the executing officer to ascertain and identify with rea-
sonable certainty those items that the magistrate has authorized him to seize.”
United States v. George, 975 F.2d 72, 75 (2d Cir. 1992). However, the degree of
specificity required depends on the crime involved and the types of items
sought. Blakeney, 942 F.2d at 1026. To be valid, the warrant description need
only be “as specific as the circumstances and the nature of the activity under
investigation permit.” United States v. Henson, 848 F.2d 1374, 1383 (6th Cir.
1988) (internal citation omitted). Military Rule of Evidence (Mil. R. Evid.)
315(b)(1) echoes the Fourth Amendment’s particularity requirement.
The warrant issued by a civilian judge for the search of Appellant’s off-base
residence authorized, based on the information in the accompanying affidavit
from the AFOSI investigator, the search and seizure of “evidence of fraud to
4 The second page of the affidavit in support of the search of Appellant’s residence on
7 December 2012 is missing from the Government’s response to the suppression motion
at Appellate Exhibit II. Although there were discussions on the record about correcting
this oversight, the original record of trial filed with the court still contains the omis-
sion. As the missing page is found in the Defense’s motion at Appellate Exhibit I, the
omission did not inhibit our review of this assignment of error.
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United States v. Eppes, No. ACM 38881
include travel orders, letters, notes, financial records, receipts, computer hard-
ware, computer software and digital media (e.g., computer equipment, digital
storage devices, cameras, photographs, etc.), and for evidence of fraud.”
Appellant first argues the addition of the phrase “and for evidence of fraud”
in the supporting affidavit resulted in the warrant becoming an improper gen-
eral search. 5 Specifically, Appellant suggests the warrant was so “amorphously
worded as to result in the indiscriminate seizure of relevant and non-relevant
material alike.” In so arguing, however, Appellant acknowledges the warrant
and supporting affidavit do attempt to identify evidence of the fraud such as
travel orders, financial records, and receipts among other items. We review de
novo whether the search authorization was overly broad, resulting in a general
search prohibited by the Fourth Amendment. United States v. Maxwell, 45
M.J. 406, 420 (C.A.A.F. 1996).
We do not find the language used here is overbroad given the nature of
Appellant’s offenses. In United States v. Abboud, 438 F.3d 554 (6th Cir. 2006),
the Sixth Circuit examined a search warrant in connection with a fraud inves-
tigation. There, investigators sought business and financial records in connec-
tion with the defendant’s bank fraud. Recognizing the difficulty facing law en-
forcement to specifically identify which records or files might contain evidence
of a fraudulent scheme, the court held the authorization to search for general
business records of a fraud scheme was not overbroad.
In this case, the warrant was specific in terms of the items to be
seized; for example, it listed “logs or ledgers that reflect the re-
cording of banking activity,” “all bank statements, deposit slips,
withdrawal slips, official checks, money orders, cancelled
checks, wire transfers and other documents for any and all bank
accounts,” and other specific forms of records. Moreover . . . the
law enforcement agents in this case could not have known the
precise documents and records Defendants utilized in the check
kiting scheme. The items listed in the warrant were items “likely
to provide information” about Defendants’ check kiting scheme.
A more specific alternative did not exist to the search warrant’s
list of items to be seized.
Id. at 575–76.
5We question whether the addition of this language was a scrivener’s error given the
use of the same language at the beginning of the challenged phrase. In any event, for
the reasons noted below, we do not find the addition of this language resulted in a
general search warrant.
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United States v. Eppes, No. ACM 38881
Likewise, we believe the language of this warrant was sufficiently nar-
rowed to focus law enforcement on the items to be seized based on Appellant’s
fraudulent scheme. The fact that the warrant included more expansive lan-
guage after describing specific items of evidence subject to this fraud investi-
gation does not by itself establish the warrant was somehow overbroad. See
United States v. Modesto, 39 M.J. 1055, 1059 (A.C.M.R. 1994), aff’d, 43 M.J.
315 (C.A.A.F. 1995). Instead, we examine both the warrant and the supporting
affidavit to determine whether the search identifies the crimes committed and
the items which could be evidence of those crimes. See United States v. Marti-
nelli, 454 F.3d 1300, 1308 (11th Cir. 2006). The warrant in this case did just
that.
Absent the seizure of blank prescription drug forms and empty prescription
medication boxes, Appellant provides no other examples of evidence seized by
AFOSI that failed to comport with the terms of the search warrant. Instead,
Appellant simply argues the military judge’s determination that these specific
items fell within the scope of the warrant reflects the expanded nature of the
search. In arguing this point, however, Appellant ignores the fact that the mil-
itary judge found that even if these items were not subject to the warrant, the
items were properly seized under the plain view doctrine. This finding by the
military judge was supported in both law and fact. See United States v.
McMahon, 58 M.J. 362, 367 (C.A.A.F. 2003) (holding that law enforcement per-
sonnel conducting a lawful search may seize items in plain view if they are
acting within the scope of their authority and have probable cause to believe
the items are contraband or evidence of a crime). As Appellant cannot point
this court to any evidence improperly seized based on his expansive reading of
this warrant, we decline to grant relief.
Appellant also claims the warrant improperly allowed AFOSI to seize items
of government property found in Appellant’s off-base residence even though
these items were not connected to any criminal offense being investigated by
AFOSI. Similar to his argument above, Appellant fails to identify items of gov-
ernment property improperly seized that was evidence potentially to be used
against him at trial.
Given Appellant’s misuse of his position, we cannot say the civilian judge’s
probable cause determination was deficient, or that AFOSI agents executing
the search did not have a good faith basis to seize government property in Ap-
pellant’s possession. See generally Mil. R. Evid. 311(c)(3); United States v.
Lopez, 35 M.J. 35, 42 (C.M.A. 1992). In attacking the probable cause determi-
nation, Appellant suggests the AFOSI agent submitted inaccurate information
about Appellant’s status as an AFOSI investigator. As found as fact by the
military judge, however, Appellant had been informed by his commander that
his ability to carry weapons as an AFOSI agent had been revoked. Appellant
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United States v. Eppes, No. ACM 38881
was also given a no-contact order which effectively prevented him from per-
forming his personal security duties for senior Air Force officers. As such, we
cannot not agree with Appellant that the civilian judge in his case was provided
with inaccurate or false information by AFOSI when authorizing the seizure
of government property.
Moreover, we believe these items of government property would have been
lawfully secured by the Government even if specific authorization had not been
granted in this case. As recognized by Appellant, he had no expectation of pri-
vacy in the government property in his possession. Instead, Appellant argues
the seizure was improper as he did maintain a reasonable expectation of pri-
vacy in the place searched––his off-base home. See United States v. Salazar,
44 M.J. 464, 467 (C.A.A.F. 1996). As noted above, however, AFOSI was legally
authorized to search Appellant’s residence for evidence surrounding his fraud-
ulent scheme as described in the warrant. Given Appellant acknowledges he
had no expectation of privacy in the government property actually seized
within his home, any government property located in plain view during the
search could be secured given AFOSI was properly in the location to be
searched. See Horton v. California, 496 U.S. 128, 135–36 (1990); McMahon, 58
M.J. at 367.
3. Search of Appellant’s Electronic Devices
Immediately upon his return from leave after his wedding ceremony and
honeymoon, Appellant was interviewed by AFOSI investigators on 8 December
2012. At the conclusion of the interview, Appellant consented to the search of
a backpack and small travel bag that he had carried with him from the airport.
Appellant declined consent to search his personal electronics in these bags,
including a cellular phone, tablet, and laptop computer.
Based on Appellant’s declination of consent, AFOSI requested verbal
search authority from a military magistrate to search for electronic devices
found in Appellant’s two personal bags. The military magistrate granted verbal
authority to search Appellant’s electronic devices, which was reduced to writ-
ing the following day.
On appeal, Appellant argues this search was defective for a variety of rea-
sons. First, he argues the search was defective as there was no evidence the
AFOSI agent’s verbal probable cause briefing to the magistrate was made un-
der oath or affirmation. Second, Appellant claims the authorization was inva-
lid as the agent who received the verbal authorization from the military mag-
istrate later changed the items sought to be seized when preparing the written
affidavit the next day. Finally, Appellant argues the oral search authority
granted in this case under Mil. R. Evid. 315(b) was constitutionally infirm as
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United States v. Eppes, No. ACM 38881
there were no procedural safeguards in place to ensure the search was based
on probable cause.
Regarding Appellant’s first claim that the verbal probable cause affidavit
was not made under oath or authorization, we find Appellant forfeited this
particular issue by not raising it at trial and thus is not entitled to relief absent
plain error. 6 See United States v. Goings, 72 M.J. 202, 205 (C.A.A.F. 2013);
United States v. Brown, 13 M.J. 810, 811 (A.F.C.M.R. 1982). To establish plain
error, Appellant must prove: “(1) there was an error; (2) it was plain or obvious;
and (3) the error materially prejudiced a substantial right.” United States v.
Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011).
We find Appellant is unable to establish plain error on this matter. While
Appellant cites to the lack of evidence in the record establishing the agent’s
verbal probable cause justification was submitted under oath, this absence was
the direct result of Appellant’s failure to specify this issue at trial. Without
evidence to the contrary, we presume the military magistrate, as a trained
quasi-judicial officer, understood the procedural requirements surrounding his
granting of probable cause in this case. Cf. United States v. Cron, 73 M.J. 718,
736 (A.F. Ct. Crim. App. 2014) (noting that judges are presumed to know the
law and apply it correctly absent clear evidence otherwise).
Appellant next argues the Government invalidated the verbal search au-
thorization for electronic devices when the AFOSI agent preparing the sup-
porting affidavit after the fact listed the specific electronic devices discovered
in Appellant’s personal bags. Appellant does not allege the magistrate failed to
have a substantial basis to grant probable cause for the search Appellant’s
electronic devices for evidence of fraud and prescription drug misuse. Instead,
he appears to argue the addition of the specific devices in the affidavit support-
ing the written search authorization shows the initial request for verbal search
authorization did not “particularly describe . . . the things to be search.” Thus,
we will examine whether the request for verbal search authority was over-
broad.
Given Appellant’s consent to the search of his two personal bags, AFOSI
agents were generally aware of the personal electronic devices in Appellant’s
possession. Notwithstanding this fact, the AFOSI agent who sought verbal au-
thorization to search Appellant’s electronic devices could not recall whether he
contacted the military magistrate for authorization before AFOSI executed the
6 The Government argues throughout its brief that Appellant’s “waive all waivable
motions” provision in his pretrial agreement should cause this court to apply waiver to
any Fourth Amendment suppression theory not specifically raised at trial. As the Gov-
ernment consented to Appellant’s conditional plea, preserving his extremely broad
suppression motion, we decline to apply waiver in this case.
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United States v. Eppes, No. ACM 38881
consensual search of Appellant’s bags. After considering the testimony of the
agent, sworn statements, and a video of the consensual search of Appellant’s
bags, the military judge made the following factual findings:
After the consent search, [Special Agent (SA) A] sought search
authorization from [the] military magistrate . . . over the phone.
During the phone call, SA A described the offenses he suspected
[Captain (Capt)] Eppes committed, the probable cause he be-
lieved existed to search Capt Eppes’ electronic devices, and the
evidence he believed he would find. SA A requested authoriza-
tion to search Capt Eppes’ bags for the personal electronic de-
vices and to search the personal electronic devices. . . . The mili-
tary magistrate was satisfied there was probable cause to be-
lieve Capt Eppes’ personal electronic devices contained evidence
of the offenses identified by SA A. The military magistrate ver-
bally granted SA A the authority to search Capt Eppes’ personal
electronic devices. At approximately 1902 hrs, SA A informed
Capt Eppes that he obtained search authorization from the mil-
itary magistrate and [that] he was authorized to search Capt
Eppes’ iPad, laptop, and iPhone. . . . Pursuant to the search au-
thorization granted by the military magistrate, agents seized
Capt Eppes’ MacBook laptop and iPad. Capt Eppes’ iPhone data
was extracted and the phone was returned to Capt Eppes.
Given the military judge’s findings, we examine whether the search for
“electronic devices” in Appellant’s two bags was constitutionally overbroad. As
previously noted, a “warrant must enable the executing officer to ascertain and
identify with reasonable certainty those items that the magistrate has author-
ized him to seize.” George, 975 F.2d at 75. To be valid, the warrant description
need only be “as specific as the circumstances and the nature of the activity
under investigation permit.” Henson, 848 F.2d at 1383 (internal citation omit-
ted).
Considering the military judge’s factual findings, we do not believe the re-
quest to search for electronic devices in Appellant’s two personal bags was con-
stitutionally deficient. An authorization to search media meets constitutional
specificity requirements as long as the material described is “related to the
information constituting probable cause.” United States v. Allen, 53 M.J. 402,
408 (C.A.A.F. 2000). We find such a connection here.
Appellant’s final argument claims Mil. R. Evid. 315(b) fails to include suf-
ficient procedural safeguards to ensure an oral search authorization is based
on probable cause. Although unclear from his brief, it appears Appellant is
raising a facial challenge to the constitutionality of the Mil. R. Evid. 315(b),
which authorizes the issuance of verbal search authority. Appellant argues the
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United States v. Eppes, No. ACM 38881
lack of procedural safeguards, specifically the absence of documentation as to
what verbal information was provided to the military magistrate in support of
probable cause, violates Appellant’s constitutional right to protection from un-
reasonable searches and seizures. In making such an argument, Appellant
acknowledges verbal search authority has been previously countenanced by
military courts.
There is a presumption that a rule of evidence is constitutional unless its
lack of constitutionality is clearly and unmistakably shown. United States v.
Wright, 53 M.J. 476, 481 (C.A.A.F. 2000); see also National Endowment for the
Arts v. Finley, 524 U.S. 569, 580 (1998) (“Facial invalidation is, manifestly,
strong medicine that has been employed by the Court sparingly and only as a
last resort.”) (internal quotation marks and citations omitted); United States v.
Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative act is, of
course, the most difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the Act would
be valid.”). Thus, in this case, Appellant must show the challenged rule of evi-
dence “offends some principle of justice so rooted in the traditions and con-
science of our people as to be ranked as fundamental.” Montana v. Egelhoff,
518 U.S. 37, 43-45 (1996) (quoting Patterson v. New York, 432 U.S. 197, 201-
202 (1977)) (examining historical practices on due process challenges).
Appellant has not “clearly and unmistakably shown” that the issuance of
oral search authorization under Mil. R. Evid. 315(b) offends fundamental fair-
ness in such a way to render the rule unconstitutional. The Fourth Amendment
requires that “no Warrants shall issue, but upon probable cause.” U.S. CONST.
amend. IV. Probable cause exists when there is sufficient information to
provide the authorizing official “a reasonable belief that the person, property,
or evidence sought is located in the place or on the person to be searched.” Mil.
R. Evid. 315(f)(2). As such,
[t]he task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the ‘veracity’ and ‘ba-
sis of knowledge’ of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a crime
will be found in a particular place.
Illinois v. Gates, 462 U.S. 213, 238 (1983). As we believe the probable cause
standard is sufficient to afford Appellant his constitutional protections, we de-
cline to grant relief.
13
United States v. Eppes, No. ACM 38881
4. Search of Appellant’s Personal Computer
Appellant next argues the Government’s search of his computer seized dur-
ing the search of his off-base residence on 7 December 2012 was improper be-
cause: (1) the warrant issued by the civilian judge only authorized AFOSI
agents to “seize” electronic devices; and (2) if the search was authorized, it oc-
curred outside the time period noted in the warrant. 7 Because Appellant did
not raise the first theory at trial, he must prove: “(1) there was an error; (2) it
was plain or obvious; and (3) the error materially prejudiced a substantial
right.” Marsh, 70 M.J. at 104.
As to the first complaint, we find Appellant has not established plain error.
The warrant issued by the civilian judge specifically granted AFOSI the au-
thority to search for and seize computer hardware connected to Appellant’s
fraudulent transactions. Therefore, the search was presumptively reasonable.
United States v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014).
Moreover, based on the facts developed by the military judge, we are satis-
fied the intent of the warrant was to authorize the examination of computer
hardware seized during the 7 December 2012 search. See United States v. Rich-
ards, No. ACM 38346, 2016 CCA LEXIS 285, at *44 (A.F. Ct. Crim. App. 2 May
2016) (unpub. op.). Appellant was being investigated for creating fraudulent
tax documents and travel orders. Evidence of these types of crimes would only
be found through an examination of the data contained on the seized hardware.
While there were obviously restrictions on the scope of the search given the
warrant and accompanying affidavit, the authorization in our opinion did cover
the search of computer hardware seized from the residence. Moreover, even if
the warrant limited AFOSI ability to examine the contents of the computer
hardware, we believe the good faith exception to the exclusionary rule applies.
See United States v. Carter, 54 M.J. 414, 419–20 (C.A.A.F. 2001).
Appellant next argues the search of the computer hardware took place out-
side the time window established by the search warrant, which stated in part:
“YOU ARE HEREBY AUTHORIZED within 10 days of the date of issuance of
this warrant to search in the daytime the designated [premise] for the property
specified and if the property be found there. YOU ARE COMMANDED TO
SEIZE IT.” As the initial examination of Appellant’s computer hardware took
7 Appellant also argues that all searches after 22 January 2013, the date the Govern-
ment first analyzed computer hardware seized on 7 December 2012, should be viewed
as “fruit of the poisonous tree” and suppressed by this court. Based on our finding be-
low that the search of Appellant’s computer hardware was legally authorized, we need
not address Appellant’s claim that subsequent searches were somehow tainted.
14
United States v. Eppes, No. ACM 38881
place on 22 January 2013, Appellant claims the 47 days that passed since the
initial seizure on 7 December 2012 invalidated the warrant.
In analyzing Appellant’s claim, we first note “[t]he Fourth Amendment does
not specify that search warrants [must] contain expiration dates
. . . [or] requirements about when the search or seizure is to occur or the du-
ration.” United States v. Gerber, 994 F.2d 1556, 1559 (11th Cir. 1993). Here,
we disagree with Appellant that the language cited above set the duration as
to when the Government could analyze the seized computer hardware. See
United States v. Cote, 72 M.J. 41, 44 (C.A.A.F. 2013) (discussing that courts
have considered seizure of electronic materials and later off-site analysis and
review of them to be a constitutionally reasonable “necessity of the digital
era”). We further find the length of time taken by the Government to examine
the computer hardware seized on 7 December 2012 was reasonable. Id. at 44
n.6. As such, we decline to grant Appellant relief. 8
5. Search of Appellant’s Personal Property
Finally, Appellant argues the Government’s search of a personal bag on 5
February 2013 exceeded the scope of the warrant. In so claiming, Appellant
acknowledges the affidavit accompanying the search authorization requested
authority to search Appellant’s personal bags. However, the search authoriza-
tion signed by the military magistrate only authorized the search of Appel-
lant’s person and personal vehicle.
The military judge found the search of Appellant’s bag to be “reasonable”
given the bag was in the immediate vicinity of Appellant’s person, which was
authorized on the search authorization. In so holding, the military judge also
found Appellant did not have a reasonable expectation of privacy in the gov-
ernment office where the search of his person and personal bag took place.
Although we do not subscribe to the military judge’s specific theory of ad-
missibility, we find that the evidence derived from this search was admissible
under the good faith exception given the facts of this case. 9
8 Moreover, even if the duration of the warrant was 10 days, we decline to apply the
exclusionary rule as the violation was de minimis or otherwise reasonable under the
circumstances. See United States v. Cote, 72 M.J. 41, 45 (C.A.A.F. 2013).
9The military judge did mention in his findings that government agents conducted the
search in “good faith reliance” on the search authorization. As the majority of his anal-
ysis focused on the location of the bag in relation to Appellant’s person, it is unclear
whether the good faith exception was a basis for denial of the suppression motion.
15
United States v. Eppes, No. ACM 38881
The good faith exception permits the admission of evidence, which although
unlawfully obtained, was the result of the good-faith reliance of law enforce-
ment agents on a search authorization. The good faith exception permits the
use of evidence obtained from an unlawful search and seizure if:
(A) the search or seizure resulted from an authorization to
search, seize or apprehend issued by an individual competent to
issue the authorization under Mil. R. Evid. 315(d) or from a
search warrant or arrest warrant issued by competent civilian
authority;
(B) the individual issuing the authorization or warrant had a
substantial basis for determining the existence of probable
cause; and
(C) the officials seeking and executing the authorization or war-
rant reasonably and with good faith relied on the issuance of the
authorization or warrant. Good faith is to be determined using
an objective standard.
Mil. R. Evid. 311(c)(3).
[T]he good-faith exception will not apply when part of the infor-
mation given to the authorizing official is intentionally false or
given with “reckless disregard for the truth.” It will also not ap-
ply where “no reasonably well trained officer should rely on the
warrant.” . . . Finally, it will not apply when the authorization
“may be so facially deficient—i.e., in failing to particularize the
place to be searched or the things to be seized—that the execut-
ing officers cannot reasonably presume it to be valid.
Lopez, 35 M.J. at 41–42 (quoting United States v. Leon, 468 U.S. 897, 923
(1984)).
Here, the only factor in dispute is whether, from an objective viewpoint, the
AFOSI agents executing the authorization reasonably and with good faith be-
lieved the authorization permitted the search of Appellant’s personal bag.
We find a reasonable agent would have believed the authorization allowed
the search of Appellant’s personal bag as requested in the affidavit accompa-
nying the authorization. See Carter, 54 M.J. at 420. The language granting the
search of Appellant’s person could reasonably be interpreted as also authoriz-
ing the search of items of personal property in Appellant’s possession when the
search was executed. This is especially true in this case where the accompany-
ing affidavit endorsed by the military magistrate specifically requested search
authority to examine Appellant’s personal bags. For this reason, we decline to
grant Appellant relief.
16
United States v. Eppes, No. ACM 38881
B. Improvident Plea to Conspiracy to Violate a Lawful General Regu-
lation
Appellant pleaded guilty to conspiring with another military member to
violate a lawful general regulation by possessing an intoxicating substance
with an intent to alter mood or function. The general order alleged in the spec-
ification was derived from AFI 44-120, Drug Abuse Testing Program, ¶ 1.1.6 (1
July 2000), which prohibited the following conduct:
In order to ensure military readiness; safeguard the health and
wellness of the force; and maintain good order and discipline in
the service, the knowing use of any intoxicating substance, other
than the lawful use of alcohol or tobacco products, that is in-
haled, injected, consumed, or introduced into the body in any
manner to alter mood or function is prohibited. These substances
include, but are not limited to, controlled substance analogues
(e.g., designer drugs such as “spice” that are not otherwise con-
trolled substances); inhalants, propellants, solvents, household
chemicals, and other substances used for “huffing”; prescription
or over-the-counter medications when used in a manner con-
trary to their intended medical purpose or in excess of the pre-
scribed dosage; and naturally occurring intoxicating substances
(e.g., Salvia divinorum). The possession of any intoxicating sub-
stance described in this paragraph, if done with the intent to use
in a manner that would alter mood or function, is also prohib-
ited. Failure to comply with the prohibitions contained in this
paragraph is a violation of Article 92, UCMJ.
Appellant admitted at trial that he entered into an agreement with another
military member to have the military member procure Valium and Xanax for
Appellant. The agreement called for the co-conspirator to use forged prescrip-
tions created by Appellant to obtain prescription medications while traveling
through Africa on special operations aviation missions. The drugs were then
mailed to Appellant when the co-conspirator returned to the United States.
Appellant advised he took the drugs in an effort to treat the anxiety he was
feeling due to stress surrounding his upcoming wedding.
On appeal, Appellant claims his plea to this specification was improvident
because any conspiracy to possess controlled substances had to be charged un-
der Article 112a, UCMJ, 10 U.S.C. § 912a, because of either the preemption
doctrine or the limitations of the specific language in underlying lawful general
regulation. As to the latter claim, Appellant argues the text of the general reg-
ulation does not apply to controlled substances such as those sought by Appel-
lant.
17
United States v. Eppes, No. ACM 38881
We do not agree that the preemption doctrine somehow limits the Govern-
ment’s ability to use an Article 92, UCMJ, 10 U.S.C. § 892, violation as the
basis for the conspiracy charge in this case. The preemption doctrine is specif-
ically enumerated in the Manual for Courts-Martial (MCM), United States
(2016 ed.), Part IV, ¶ 60(c) (5)(a), and “prohibits application of Article 134 to
conduct covered by Articles 80 through 132.” The “rationale of preemption is
that, if Congress has covered a particular kind of misconduct in specific puni-
tive articles of the Uniform Code, it does not intend for such misconduct to be
prosecuted under the general provisions of Article 133 or 134.” United States
v. Reichenbach, 29 M.J. 128, 136-37 (C.M.A. 1989); see also United States v.
McGuinness, 35 M.J. 149, 151–52 (C.M.A. 1992). Thus, while the Government
could have charged Appellant with conspiring to violate Article 112a, UCMJ,
the preemption doctrine did not require them to do so. 10
Even if we were to agree with Appellant’s general preemption argument,
we do not believe Congress intended Article 112a, UCMJ, to occupy the field
for all prescription drug offenses. See United States v. Erickson, 61 M.J. 230,
233 (C.A.A.F. 2005) (noting there is nothing on the face of Article 112a, UCMJ,
or in its legislative history to suggest Congress intended to preclude the armed
forces from relying on other UCMJ provisions, including the general article, to
punish drug-related offenses not covered by Article 112a, UCMJ); see also S.
Rep. No. 98-53, at 29 (1983) (Article 112a “is intended to apply solely to offenses
within its express terms. It does not preempt prosecution of drug parapherna-
lia offenses or other drug-related offenses under Article 92, 133, or 134 of the
UCMJ.”). Here, Appellant was charged with conspiracy to violate a lawful gen-
eral regulation prohibiting the possession of any intoxicating substance other
than alcohol with the intent to use the substance in a manner that would alter
mood or function. The fact the substance sought by Appellant was a controlled
substance does not remove the Government’s ability to charge possession of a
substance that Appellant could have lawfully obtained, but still used in an il-
licit manner.
With the preemption question resolved, we examine the providence of Ap-
pellant’s plea to the charged offense. We review a military judge’s acceptance
of an accused’s guilty plea for an abuse of discretion. United States v. Inabi-
nette, 66 M.J. 320, 322 (C.A.A.F. 2008). In order to prevail on appeal, Appellant
10 Appellant cites dictum from a sister service case, United States v. Asfeld, 30 M.J.
917 (A.C.M.R. 1990), as support for his preemption claim. The court in Asfeld cited our
superior court’s opinion in United States v. Curry, 28 M.J. 419 (C.M.A. 1989), as au-
thority for its pronouncement on preemption. As we believe the Curry holding turns
on the doctrine of unreasonable multiplication of charges, id. at 424, we do not find our
sister court’s opinion to be persuasive.
18
United States v. Eppes, No. ACM 38881
has the burden to demonstrate “a substantial basis in law [or] fact for ques-
tioning the guilty plea.” Id. (quoting United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991)) (internal quotation marks omitted). The “mere possibility” of a
conflict between the accused’s plea and statements or other evidence in the
record is not a sufficient basis to overturn the trial results. United States v.
Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996) (quoting Prater, 32 M.J. at 436) (in-
ternal quotation marks omitted). A guilty plea will only be considered improv-
ident if testimony or other evidence of record reasonably raises the question of
a defense, or includes something patently inconsistent with the plea in some
respect. See United States v. Roane, 43 M.J. 93, 98–99 (C.A.A.F. 1995).
Having examined the providence inquiry and the stipulation of fact, we find
the military judge did not abuse his discretion in accepting Appellant’s plea to
this offense. Appellant admitted he entered into an agreement with another
military member to transfer prescription medications to Appellant even
though he did not have a lawful prescription. Appellant confirmed there were
steps taken in furtherance of the conspiracy when his co-conspirator shipped
the drugs to Appellant. Regarding the offense underlying the conspiracy, Ap-
pellant admitted the drugs sought were intoxicating substances as defined in
the regulatory guidance, and acknowledged he used the substances to alter his
mood or function.
Appellant seems to argue the controlled nature of the substance in this case
causes it to fall outside the definition found in the regulatory guidance. We
disagree given our plain reading of the term “intoxicating substance.” As Ap-
pellant admitted he believed the prescription medications in his possession
were subject to regulation by the instruction, we see no inconsistencies before
the military judge that would have reasonably called into question Appellant’s
plea.
C. Improvident Plea to Conduct Unbecoming an Officer
Appellant pleaded guilty to a variety of offenses under Article 133, UCMJ,
for his deceitful conduct towards employees of the Dallas hotel where his wed-
ding took place. On appeal, Appellant challenges one of these specifications in
which he threatened to prevent the hotel from competing for future govern-
ment business by “blacklisting” or “classifying” the hotel. On appeal, Appellant
claims his plea was improvident because he never admitted to using the term
“blacklist” or “blacklisting” and the military judge failed to equate the term
“classifying,” which Appellant did use, to “blacklisting.”
As noted above, we review a military judge’s acceptance of an accused’s
guilty plea for an abuse of discretion. Inabinette, 66 M.J. at 322.
To sustain Appellant’s guilty plea to this offense, a sufficient factual pred-
icate had to establish that: (1) Appellant wrongfully and dishonorably stated
19
United States v. Eppes, No. ACM 38881
to a hotel employee that “I’m going to blacklist you,” or words to that effect;
and (2) Appellant’s conduct, under the circumstances, constituted conduct un-
becoming an officer. MCM, Part IV, ¶ 59a. (2012 ed.).
Appellant’s inability to remember the exact terminology he used to
threaten the hotel employee in this case does not render his plea improvident.
If an appellant is personally convinced of his guilt based upon an assessment
of the government’s evidence, his inability to recall the specific facts underlying
his offense without assistance does not preclude his guilty plea from being
provident. United States v. Jones, 69 M.J. 294, 299 (C.A.A.F. 2011); United
States v. Corralez, 61 M.J. 737, 741 (A.F. Ct. Crim. App. 2005). In these cir-
cumstances, Appellant’s reliance on information provided in the stipulation of
fact or by his counsel does not raise a substantial basis in law or fact to question
the plea. Id.
While it is true Appellant never informed the military judge he specifically
used the terms “blacklist” or “blacklisting” when dealing with the hotel staff,
the providence inquiry establishes Appellant was convinced of his own guilt.
See United States v. Moglia, 3 M.J. 216, 218 (C.M.A. 1977). As part of his pre-
trial agreement, Appellant agreed to a stipulation of fact surrounding his of-
fenses. Appellant acknowledged that all of the facts contained in the stipula-
tion were true and uncontradicted. With regard to Appellant’s specific chal-
lenge on appeal, the stipulation noted Appellant “threatened to ‘blacklist’ the
hotel from the Government Accountability Office (GAO) accommodations book,
or words to that effect.” The stipulation later documented that Appellant in-
formed a hotel employee that the hotel “was now officially blacklisted, or words
to that effect.”
When asked about these statements in the stipulation of fact, Appellant
informed the military judge, “I can’t recall [using those exact words] . . . but it’s
very possible, like I told you before, under the circumstances it could have hap-
pened.” Later during the providence inquiry, Appellant advised, “I’m not say-
ing that I did not say those things[;] I just don’t accurately recall but the at-
mosphere was such that I could have.” Finally, when asked whether he had
any reason to doubt the statements of the hotel employee as documented in the
stipulation of fact, Appellant stated, “I have no reason to doubt that he’s prob-
ably . . . more accurate than I am after, you know, enduring all of this.”
Appellant also admitted to the military judge that he sent an e-mail to a
hotel staff member, which was attached to the stipulation of fact, advising that
he intended to place a “classification” on the hotel that would limit its ability
to obtain government business. Appellant advised he sent the e-mail to show
he had the “power, ability or knowledge to change a classification or blacklist”
the hotel.
20
United States v. Eppes, No. ACM 38881
Given Appellant’s statements above, as well as his pronouncements that he
believed he was, in fact, guilty of the offense, Appellant has failed to demon-
strate “a substantial basis in law [or] fact for questioning the guilty plea.”
Prater, 32 M.J. at 436.
D. Failure to State an Offense
In addition to his direct financial crimes, Appellant was charged with con-
duct unbecoming an officer for failing to properly report currency transactions
as required by 31 U.S.C. § 5324(c). As Appellant noted during the providence
inquiry, and as documented in the stipulation of fact, Appellant enlisted the
assistance of a friend, who was an Air Force officer stationed in Belgium, to
electronically transfer to Appellant approximately $50,000.00 in cash in incre-
ments under $10,000.00 to avoid federal reporting requirements. Appellant
provided his friend with the currency as Appellant was returning to the United
States from a deployment in Africa. Over the course of almost two years, the
friend executed numerous non-reported wire transfers to return the cash to
Appellant for his personal use. Appellant now claims the charged specification
fails to state an offense.
Whether a charge and specification states an offense is a question of law
that we review de novo. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F.
2006). “A specification states an offense if it alleges, either expressly or by [nec-
essary] implication, every element of the offense, so as to give the accused no-
tice and protection against double jeopardy.” Id. (citing United States v. Dear,
40 M.J. 196, 197 (C.M.A. 1994)); see also R.C.M. 307(c)(3). Because Appellant
did not request a bill of particulars or move to dismiss the specification for
failing to state an offense at trial, we analyze this issue for plain error. United
States v. Ballan, 71 M.J. 28, 34 (C.A.A.F.), cert. denied, 133 S. Ct. 34 (2012)
(mem.).
The elements of the offense alleged in the specification are: (1) that, on di-
vers occasions, Appellant wrongfully and dishonorably engaged in acts of struc-
turing monetary instruments, in violation of 31 U.S.C. § 5324(c), by knowingly
failing to file and knowingly causing another to fail to file a report required by
federal law; and (2) that, under the circumstances, this conduct was unbecom-
ing an officer.
Appellant concedes all of the elements of the offense are stated either ex-
pressly or by necessary implication. Instead, Appellant focuses on the remain-
ing requirements of notice and protection from double jeopardy. Specifically,
as a violation of the underlying federal statute can occur by either structuring
a financial transaction or failing to report a transaction, Appellant complains
he was not on notice as to which theory the Government was proceeding under
21
United States v. Eppes, No. ACM 38881
at trial. Moreover, given these alternative theories, Appellant alleges the spec-
ification did not protect him against double jeopardy as the Government could
later charge him with a violation of a different theory of liability under this
statute.
We need not dwell too long on this question given our review is for plain
error. It is clear from Appellant’s admissions during the providence inquiry
that he was fully aware of the Government’s charging theory based on the in-
dividual elements of the charge against him. See United States v. Sell, 11
C.M.R. 202, 206 (C.M.A. 1953) (notice requirements met when charge suffi-
ciently apprised an accused of what he must be prepared to meet). As such,
Appellant has failed to establish he was without fair notice of the offense
charged against him.
Likewise, the specification alleges sufficient facts, and the record as a whole
provides a sufficient factual basis, for Appellant to raise a claim of double jeop-
ardy if he is later prosecuted for a violation of the same statute under a differ-
ent theory of culpability. See Dear, 40 M.J. at 197 (holding an accused can point
to the entire record of trial in raising double-jeopardy protection). For these
reasons, we decline to find plain error.
E. Review of the Convening Authority’s Denial of Appellant’s Request
to Defer Forfeitures
Shortly after the completion of his trial, Appellant, through his military
defense counsel, requested the convening authority defer all forfeitures until
action, and then waive forfeitures at action for the benefit of Appellant’s
spouse. Appellant justified his request by stating the loss of his pay and allow-
ances “may” leave his wife without adequate support. The convening authority
denied Appellant’s request in writing a week later but provided no justification
for his denial of Appellant’s request.
On appeal, Appellant claims it was error for the convening authority to not
provide reasons for his denial of the deferral request. He requests this court
grant relief for this error by either disapproving or reducing his fine, or taking
other action to reduce the sentence as appropriate.
In response, the Government suggests the convening authority’s decision
to defer and waive forfeitures is a matter of clemency and, therefore, not sub-
ject to judicial review. While we agree with the Government that Appellant’s
waiver request is not subject to our review, the denial of his deferment request
is a matter squarely within this court’s purview. United States v. Key, 57 M.J.
246, 248 (C.A.A.F. 2002). We review the convening authority’s action on a de-
ferral request for an abuse of discretion. R.C.M. 1101(c)(3).
22
United States v. Eppes, No. ACM 38881
In this case, the convening authority’s denial of the request to defer forfei-
tures failed to identify any reason for the decision. This was error. United
States v. Sloan, 35 M.J. 4, 6–7 (C.M.A. 1992); R.C.M. 1101(c)(3), Discussion.
However, the convening authority’s error does not entitle Appellant to re-
lief unless it materially prejudices his substantial rights. Article 59(a), UCMJ,
10 U.S.C. § 859(a). As previously noted by our sister service court, “[a]bsent
credible evidence that a convening authority denied a request to defer punish-
ment for an unlawful or improper reason, an erroneous omission of reasons in
a convening authority’s denial of a deferment request does not entitle an ap-
pellant to relief.” United States v. Zimmer, 56 M.J. 869, 874 (Army Ct. Crim.
App. 2002).
We have no evidence before us that the convening authority’s denial was
for unlawful or improper reasons. While Appellant attempted to show the neg-
ative financial impact of his sentence on his wife’s well-being, this fact was
obviously balanced against Appellant’s significant financial crimes against the
United States Government and a commercial insurance company. Without the
necessary evidence of prejudice, we find the error in this case to be harmless.
F. Sentence Appropriateness
Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appel-
lant argues his sentence is inappropriately severe given the significant “legal
and factual overlap” between the false statement, fraudulent claim, and lar-
ceny offenses. Appellant requests this court grant appropriate relief by signif-
icantly reducing his sentence to confinement.
This court reviews sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “We assess sentence appropriateness by
considering the particular appellant, the nature and seriousness of the of-
fense[s], the appellant’s record of service, and all matters contained in the rec-
ord of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App.
2009). Although we are accorded great discretion in determining whether a
particular sentence is appropriate, we are not authorized to engage in exercises
of clemency. United States v. Nerad, 69 M.J. 138, 148 (C.A.A.F. 2010).
After giving individualized consideration to this particular Appellant, his
record of service, the nature and seriousness of the offenses, and all other mat-
ters contained in the record of trial, we find the approved sentence is not inap-
propriately severe. Appellant’s deceitful and dishonorable misconduct was
both recurring and expansive. As such, we find, based on the entire record, that
the approved sentence for this commissioned officer is not unduly harsh or oth-
erwise inappropriate.
23
United States v. Eppes, No. ACM 38881
G. Multiplicity and Unreasonable Multiplication of Charges
Appellant’s final assignment of error requests this court declare assorted
offenses either multiplicious or an unreasonable multiplication of charges. In
requesting relief, Appellant acknowledges his claims have been waived by the
“waive all waivable motions” provision in his pretrial agreement. See United
States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009). Nonetheless, pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appellant asks us to grant ap-
propriate relief.
We hold Appellant has waived this issue on appeal. Gladue, 67 M.J. at 314.
Moreover, after consideration of the entire record of trial, we decline to exercise
our authority under Article 66(c), UCMJ, to grant Appellant relief for this
claim of error. United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016).
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. 11
Articles 59(a) and 66(c), UCMJ. Accordingly, the findings and the sentence are
AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
11 Although not raised by Appellant, we note 126 days elapsed between the conclusion
of trial and the convening authority’s action, exceeding the 120-day standard estab-
lished by United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). We find no evi-
dence Appellant was prejudiced by the delay and, therefore, find that relief under
Moreno is not warranted. We also decline to grant relief even in the absence of a show-
ing of prejudice. United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002).
24