United States v. Hall

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Senior Airman BRITTNEY L. HALL
United States Air Force
ACM 38241
____ M.J. ____
11 April 2014
Sentence adjudged 16 October 2012 by GCM convened at Minot Air Force
Base, North Dakota. Military Judge: Michael A. Lewis (sitting alone).
Approved Sentence: Dishonorable discharge, confinement for 30 months,
forfeiture of all pay and allowances, reduction to E-1, and a reprimand.
Appellate Counsel for the Appellant: Major Matthew T. King.
Appellate Counsel for the United States: Major Jason S. Osborne and
Gerald R. Bruce, Esquire.
Before
ORR, MARKSTEINER, and WIEDIE
Appellate Military Judges
OPINION OF THE COURT
This opinion is subject to editorial correction before final publication.
MARKSTEINER, Senior Judge, delivered the opinion of the Court, in which ORR,
Senior Judge1, joined. WIEDIE, Judge, filed a dissenting opinion.
A general court-martial composed of a military judge sitting alone convicted the
appellant, consistent with her pleas, of violating a lawful order on divers occasions;
larceny of military property of a value of over $500; assault with a loaded firearm; and
obstructing justice, in violation of Articles 92, 121, 128, and 134, UCMJ,
1
Senior Judge Orr participated in this decision prior to his retirement.
10 U.S.C. §§ 892, 921, 928, and 934. The adjudged sentence consisted of a dishonorable
discharge, confinement for 42 months, forfeiture of all pay and allowances, reduction to
E-1, and a reprimand. Pursuant to a pretrial agreement, the convening authority approved
only 30 months of confinement and the remainder of the sentence as adjudged.
The appellant did not raise any issues on appeal; however, this Court specified the
following issue: Whether the appellant’s plea of guilty to larceny was rendered
improvident by the appellant’s providency inquiry statements that, “a few days . . . , a
week, a week and a half” after the marriage ceremony the appellant and her purported
husband “decided to give [the marriage] a try.”
In addition to the specified issue, we also examine the providence of the
appellant’s plea to the larceny charge with respect to whether BAH is “military property.”
We hold that the appellant’s plea to larceny is provident with the exception of the words
“military property.”
Background
The appellant was an airman first class assigned to her first duty station at Minot
Air Force Base (AFB), North Dakota. Unmarried, enlisted military members assigned to
Minot AFB were required to live in the on-base dormitories until they reached the rank of
senior airman and had over three years of service. As of September 2010, the appellant
was unmarried, had not attained the rank of senior airman, and had less than three years
of service, and thus was required to live in the dormitories and was not entitled to BAH.
Desiring to live off base, the appellant engaged in a practice known as “ghosting.”
Ghosting is a term used to describe an Airman who maintains a dormitory room on base,
but actually lives off base. Airmen who ghost pay for their off-base residences out of
pocket. While ghosting, the appellant actually lived in a two bedroom apartment in the
city of Minot. She shared the apartment with a male, Airman First Class (A1C) JTY,
whom she had previously dated, and a female, Senior Airman (SrA) NMK, with whom
she had, at the time, a romantic relationship. Like the appellant, A1C JTY and SrA NMK
were also ghosting.
In September 2010, the three engaged in a conversation with SrA CHB who also
lived in their apartment complex. The appellant and her roommates discussed the
financial hardships they were enduring because they were paying for the apartment out of
their own pockets. SrA CHB suggested that if the appellant and A1C JTY got married,
they could both receive BAH and be better able to afford living off base.
Over the next week or so, the appellant and A1C JTY discussed the idea of getting
married in order to receive BAH. They decided to do so and on 28 September 2010,
were married in a civil ceremony. On the day of the marriage, the appellant provided a
2 ACM 38241
copy of the marriage certificate to the Minot AFB finance office and began receiving
BAH with an effective date of 28 September 2010. Both the appellant and A1C JTY
continued to receive BAH until A1C JTY separated from active duty on 14 May 2011.
On 5 December 2011, the appellant returned to the finance office to update her status to
reflect that her husband had separated from active duty. She then started to receive BAH
at the increased “with dependent” rate. Additionally, she received back-dated “with
dependent” rate BAH retroactively starting on the date A1C JTY left active duty.
It is undisputed that on 28 September 2010, when the appellant and A1C JTY
were married, they had no intention of establishing a life as husband and wife. However,
during the Care inquiry2, the appellant made various statements indicating that at some
point they did attempt to live as husband and wife.
The military judge noted that she appeared to be qualifying her answers to his
questions about the marriage, and he inquired further about it. The appellant reaffirmed
that at the time of the marriage ceremony she did not intend to live as husband and wife
with A1C JTY. She said, however, that they “actually decided to give it a try . . . a few
days . . . , a week, a week and a half” after they were married because they had been
living together and they “felt like [they] could make it work.” In response to a question
from the military judge, the appellant stated that she thought she was really married and
that she and A1C JTY acted like a married couple by doing the things married couples
do. She said she and A1C JTY would go out, share money, spend time together, and be
intimate, “the things that anybody in a . . . committed relationship would do except for
the fact that we were legally married.”
The court-martial recessed overnight. The next day, the military judge asked the
appellant if she thought the marriage was a sham marriage. The appellant agreed it was a
sham marriage. The military judge concluded the marriage was a sham, articulated his
basis for doing so, and found the plea to larceny to be provident. He then entered
findings of guilty in accordance with the appellant’s pleas.
Despite the appellant’s vacillation during the Care inquiry, we find nothing in the
record before us, considered in its entirety, presenting a substantial basis in law or fact
causing us to question the providence of the appellant’s guilty plea. Notwithstanding our
dissenting colleague’s argument to the contrary, we find it impossible to decide this case
without addressing the nature of the appellant’s marriage. We hold that a marriage that is
a sham at its inception remains a sham for purposes of acquiring housing allowances to
which one or both parties to that sham marriage would not otherwise be entitled.
2
United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
3 ACM 38241
Providency of Plea to Larceny of Military Property
We review a military judge’s decision to accept a guilty plea for an abuse of
discretion and questions of law arising from the guilty plea de novo. See United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008); United States v. Eberle, 44 M.J. 374, 375
(C.A.A.F. 1996) (citation omitted). “In doing so, we apply the substantial basis test,
looking at whether there is something in the record of trial, with regard to the factual
basis or the law, that would raise a substantial question regarding the appellant’s guilty
plea.” Inabinette, 66 M.J. at 322; see also United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991) (A plea of guilty should not be overturned as improvident unless the
record reveals a substantial basis in law or fact to question the plea.). “In reviewing the
providence of Appellant's guilty pleas, we consider his colloquy with the military judge,
as well any inferences that may reasonably be drawn from it.” United States v. Carr,
65 M.J. 39, 41 (C.A.A.F. 2007) (citing United States v. Hardeman, 59 M.J. 389, 391
(C.A.A.F. 2004)). A military judge abuses this discretion when accepting a plea if he
does not ensure the accused provides an adequate factual basis to support the plea during
the providency inquiry. See Care, 40 C.M.R. at 253. This is an area for which the
military judge is entitled to much deference. See Inabinette, 66 M.J. at 322.
Our reviewing standard for determining if a guilty plea is provident is whether the
record presents a substantial basis in law or fact for questioning it. See id.; Prater,
32 M.J. at 436. At trial, the military judge must have ensured the appellant understood
the facts that support her guilty plea (what she did), and the military judge must be
satisfied the appellant understood the law applicable to her acts (why she is guilty), and
that she is actually guilty. See United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008)
(citing Care, 40 C.M.R. at 250-51); United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.
2002).
BAH as “Military Property”
The appellant was charged with stealing military property in the form of BAH. As
a preliminary issue, we must determine whether BAH constitutes military property.
Our superior court has not directly addressed the issue of whether housing
entitlements are “military property” although it has implicitly approved this conclusion.
See United States v. Helms, 47 M.J. 1 (C.A.A.F. 1997) (upholding a conviction for
larceny of military property for the theft of Basic Allowance for Quarters (BAQ) and
Overseas Housing Allowance (OHA) without specifically addressing the issue of housing
allowances as military property).
This Court, however, has directly addressed this question. In United States v.
Thomas, 31 M.J. 794, 797 (A.F.C.M.R. 1990), we held that Variable Housing Allowance
(VHA) was not “military property of the United States.” We subsequently extended the
4 ACM 38241
Thomas holding to cover BAQ. See United States v. Ryan, ACM 28906 (A.F.C.M.R.
19 June 1992) (unpub. op.). Although the name has changed, for purposes of
determining whether they constitute “military property,” BAH and BAQ are
indistinguishable. Housing allowances are not unique to the military. They are not put to
any military function that entitles them to the enhanced maximum punishment authorized
for “military property” under Article 121, UCMJ, 10 U.S.C. § 921. As this Court noted
in Thomas, “[o]rdinarily, it is the property it purchases, not the money itself, which has
the ‘uniquely military nature’ or will be put to a ‘function’ which merits its inclusion in
the specially-protected category of ‘military property.’” Thomas, 31 M.J. at 797 (citing
United States v. Ford, 30 M.J. 871, 876 (A.F.C.M.R. 1990) (Pratt, J. concurring
opinion)); see also United States v. Schelin, 15 M.J. 218, 220 (C.M.A. 1983). Absent
direct guidance from our superior court we see no reason to deviate from our previous
decisions on this issue, and therefore find that the property alleged to have been stolen in
this case was not military property. We therefore affirm a finding of guilty to the lesser
included offense of larceny of property other than military property.
Nature and Legal Status of Appellant’s Marriage
Contrary to our dissenting colleague’s argument, we find it impossible to address
the issue before us without addressing what appears to be an issue of first impression for
this Court: Whether a marriage that, when entered into, was a sham, always remains a
sham, or whether such a marriage is essentially capable of being later ratified by a change
in the subjective intent of the parties to the marriage? Restated, is such a marriage void,
or voidable?
The substance of our colleague’s conclusion that the appellant was in a “legally
valid marriage” is as follows: Because she possessed a facially valid marriage license
and had participated in a marriage ceremony (albeit with an admittedly fraudulent
purpose, and during which she and A1C JTY lied to the solemnizing official), several
days later when the appellant and A1C JTY decided to give the marriage a try, the
confluence of those facts rendered the marriage valid – or lawful – for any and all
purposes. At the very least, he concludes, that the appellant believed as much.
We reject the proposition that the appellant was in a valid marriage. The validity
of a marriage is ordinarily a question of fact to be decided in accordance with state law.
See United States v. Phillips, 52 M.J. 268, 272 (C.A.A.F. 2000); United States v. Allen,
27 M.J. 234, 239 (C.M.A. 1988). State law is not determinative if a service member
enters into a sham marriage to fraudulently obtain government benefits or to commit
immigration fraud. See Lutwak v. United States, 344 U.S. 604, 611 (1953); United States
v. Bolden, 28 M.J. 127, 130 (C.M.A. 1989). As noted in Bolden,
Perhaps under that law – which, according to accepted principles of conflict
of laws, would govern the validity of the marriage – participation in a
5 ACM 38241
marriage ceremony is insufficient to create a valid marriage, if the parties
never intended to live together as husband and wife. In that event,
completion of the marriage ceremony clearly would not shield
[the appellant] from conviction of larceny.
28 M.J. at 129.
In this case, however, the record does not contain sufficient information to
ascertain whether the appellant’s marriage was in fact ever “valid” in North Dakota. The
appellant and A1C JTY lied to the civil judge who presided over their ceremony in order
to acquire state-conferred status as a married couple under North Dakota law. According
to the appellant’s testimony, the judge who solemnized the marriage3 did so only after the
couple engaged in the promises or vows commonly attested to during marriage
ceremonies. When asked by the military judge if the civil judge who conducted the
marriage ceremony had them make any promises or representations regarding their intent,
the appellant recalled, “I can’t remember the exact words that he had us repeat, but it was
along the lines of promising to love us [sic] other through sickness and health, richer and
poorer, things of that nature.” Only after the appellant and A1C JTY repeated these
statements did the civil judge pronounce them married.
To say this was a “valid marriage” is to assume the civil law judge would have
pronounced them married even if they refused to repeat those promises as he instructed.
Indeed, by our colleague’s estimation, the appellant and A1C JTY would have been every
bit as validly married if they would have told the civil law judge “we’re not going to say
any of that stuff. The only reason we’re doing this is to get money from the Air Force to
which we would otherwise not be entitled. Now get on with it.” Fraudulently misleading
a state official into conferring a state-regulated status upon them may have placed the
appellant and A1C JTY in possession of a piece of paper saying they were married, but
that is not the same as concluding, judicially, that they were validly – lawfully – married.
We also reject the appellant’s argument that her case stands in “stark contrast to
the fake marriage condemned by the CMA in Bolden.” In Bolden, our superior court
upheld the appellant’s conviction of conspiring to defraud the government out of housing
allowance money by orchestrating a sham marriage between the appellant’s friend,
Bahre, and his girlfriend, Willoughby. See Bolden, 28 M.J. at 131. Although the history
and living arrangements between Bahre and Willoughby differed from the appellant’s
and A1C JTY’s, the Court’s overarching rationale for upholding Bolden’s conviction is
every bit as applicable to the case now before us. In both cases the parties to the sham
marriages undertook courses of conduct specifically intending – with singular focus – to
gain access to government funded payment streams to which they would not otherwise be
lawfully entitled.
3
See North Dakota Century Code § 14-03-09.
6 ACM 38241
“Even if the marriage was valid under [state] law,” our task would be to “inquire
whether Congress intended for a servicemember to receive a quarters allowance as a
married person if the marriage was a sham.” Bolden, 28 M.J. at 129-30, citing Lutwak,
344 U.S. 604 (validity of marriage not determinative in case of servicemen convicted of
engaging in sham marriages with non-citizens where purpose of marriages was to
circumvent immigration laws). In Bolden, our superior court noted it was “convinced
that when Congress authorized a basic allowance for quarters for a servicemember with
‘dependents,’ . . . Congress did not intend that the term include a person who was linked
to a servicemember by only a sham marriage.” Id. at 130. Congress “also never intended
to encourage or subsidize the sort of arrangement into which [the appellant’s friend and
girlfriend] entered . . . there is nothing unfair in imposing criminal liability on a
servicemember who seeks to obtain allowances from the Government by entering into a
fake marriage; and, in light of Lutwak, we are convinced that Congress meant to impose
such liability.” Id. 130-131.
“The crucial issue in determining the legitimacy of a marriage is not the couple’s
way of life within the marriage but the spouses’ intent at the time the marriage was
contracted.” Note, “The Constitutionality of the INS Sham Marriage Investigation
Policy, 99 Harv. L. Rev. 1238, 1249 (1986). Under U.S. immigration law, a sham
marriage is void from the start for purposes of securing residency status. In the Matter of
Awwal, the U.S. immigration service held that even in a case where the U.S. citizen
stepparent of an alien stepson had demonstrated “active parental interest,” the child
enjoyed no advantageous immigration status customarily available to stepchildren
because the father’s original marriage to the boy’s mother was a sham. Matter of Awwal,
19 I&N Dec. 617, 619-21 (BIA 1988). “A sham marriage is invalid from its inception.”
Id. at 621.
Military law follows suit. In Bolden, the trial judge instructed the members:
[A] sham marriage is void under the law of this country as against public
policy and such a marriage can have no validity. Mutual consent is
necessary to every contract and no matter what forms or ceremonies the
parties go through indicating the contrary, they do not contract if they do
not in fact assent. Marriage is no exception to this rule. If the spouses
agree to a marriage only for the sake of representing it as such to the
outside world, they have never really agreed to be married at all. They
must assent to enter into the relation as it is ordinarily understood and it is
not ordinarily understood as merely a pretense or a cover to deceive others.
United States v. Bolden, 23 M.J. 852, 854 (A.F.C.M.R. 1987) (emphasis added).
Affirming our holding in Bolden, our superior court, not mincing words, held “the
Government’s evidence was legally sufficient to sustain the findings of guilty and the
7 ACM 38241
instructions adequately informed the court members of the applicable legal principles.”
Bolden, 28 M.J. at 131. Accordingly, a sham marriage is void, not voidable.
In order to clarify this issue prospectively, we now follow Bolden and hold a
marriage that is a sham at its inception remains a sham for purposes of acquiring housing
allowances to which one or both parties to that sham marriage would not otherwise be
entitled. We therefore find all BAH monies the appellant received, excluding those to
which she would have been eligible to receive as a single person after achieving requisite
rank and or longevity, to have been obtained by false pretenses.
Philosophically, one might present this hypothetical as a challenge to our holding
regarding the void nature of a sham marriage for purposes of gaining entitlement to
military benefits: “Assume Couple #1 marry on 1 January with the intent to spend a life
together, submit the required paperwork to the finance office, and begin receiving
housing benefits that same day. Assume further that the next day they realize they cannot
stand each other, and one of them moves out. They spend the next twenty years
collecting increased housing allowance lawfully payable only to married service
members. Assume Couple #2 also marries on 1 January, only this second couple took
part in a sham marriage for the sole purpose of getting a housing allowance to which they
would not otherwise lawfully be entitled. Unlike the first couple, Couple #2 realize on
day two that they were meant for each other and spend the next twenty years devoted to
one another in a way most people would describe as an ideal marriage. If they collect the
same increased housing allowance, they have committed a crime and Couple #1 has not.
How are we to reconcile that outcome?”
Our answer to such a rhetorical challenge is that Couple #2 should not have
engaged in the sham marriage in the first place. Regretting having committed a crime, or
having difficulty in undoing it, does not mean the crime never took place. Our
jurisprudence recognizes this reality as axiomatic in cases of larceny, where the person
wrongfully in possession of another’s property commits that offense the moment he
forms an intent to permanently deprive the rightful owner of its possession. It does not
matter if he harbors that intent for only a second, or if he returns the property, or later
pays the owner five times its worth. The same principle holds true in the case of
desertion. Once the required mens rea and bad act intersect, subsequent attendant factors
may be appropriate for consideration in extenuation and mitigation, but the crime itself
cannot be un-committed.4
Others skeptical of the position we take today may posit that people can get
married for all sorts of reasons. For example, some marry to gain approval of a family
4
Though not specifically stated, our dissenting colleague’s position appears to be that not only are sham marriages
essentially ratifiable, but that such ratification is a one-way street, in that once the appellant and A1C JTY decided to
“give it a try,” they become lawfully entitled to BAH unless they later divorce or have the marriage annulled,
irrespective of how long that effort to “give it a try” lasts.
8 ACM 38241
member, or to share in raising an unplanned child. Who is to say what is a ‘sham’ or an
‘invalid’ reason for marriage? To that proposition, we note that the answers to questions
like those, while intellectually appetizing, are beyond the scope of this decision. What
we hold today is simply this: It is not the absence of a perfect or ideal “love, honor, and
cherish” motivation of the parties that renders the consequences flowing from the
appellant’s actions in the case before us criminal; rather, it is the affirmative presence of a
singularly focused illicit one – an intent to fraudulently acquire a government payment
stream – that does so.
We also reject the appellant’s asserted belief that within “a few days . . . , a week,
a week and a half” the appellant thought she was legally married, that they acted like
husband and wife, and she believed she was married and conducted herself as though she
was married. Though the appellant attempted to recast her actions in as favorable a light
as possible during the Care inquiry by initially equivocating on various points, the
military judge pressed where he needed to, and in so doing established the following
facts, which we find sufficient to leave her guilty plea undisturbed.
Prior to the sham marriage, the appellant lived with SrA NMK, who was her then
current girlfriend, and with A1C JTY, whom she had previously dated. The appellant
spent some nights in A1C JTY’s room and other nights in SrA NMK’s room. There is no
indication the marriage in any way altered the sleeping arrangements or relationships
among the roommates. Quite the contrary, by early February 2011, A1C JTY had moved
out and the appellant and SrA NMK moved into a rented house together, along with
another roommate. Notably, also in February 2011, the appellant threatened SrA NMK
with a loaded gun because of concerns that SrA NMK had cheated on her. On these
facts, we disagree with our colleague’s conclusion that the appellant believed she and
A1C JTY “lived together as husband and wife.”
As to sharing money, the appellant offered no specifics except that after A1C JTY
moved out, “[w]hen he would call and tell me he needed money, I would give it to him.”
When asked why she provided money to A1C JTY when he would call and ask for it, she
explained that she gave him money “[b]ecause he needed it, and I’ve always been there
for him to help him out, whatever he needed.” When the judge pinned her down and
asked her to specify whether she was required to support him because they were married
or for some other reason, she answered, “Well, I was required to provide him support, but
it was because he – me and him are really, really close, sir.” Nothing about her
statement suggests her inclination to “help out” A1C JTY financially was in any way
related to their sham marriage, or that she was lawfully responsible for A1C JTY because
he was her spouse.
On the contrary, we find it at least as plausible – indeed more probable – to infer
from her statements that the appellant and A1C JTY were friends who agreed to fake a
marriage to make some extra cash, and she simply honored that agreement when, from
9 ACM 38241
time to time, he asked her to do so. The appellant’s self-described practice of helping out
A1C JTY lacks the sort of specificity we might have found supportive of our dissenting
colleague’s position. For example, she did not say she and A1C JTY shared bills, split
grocery or other living expenses, paid taxes as a married couple, or in any way
meaningfully managed their finances as married couples customarily do. Rather, she
offered nothing beyond broad generalities constituting little more than what appears to be
an effort to minimize her misconduct in the eyes of others present in the courtroom.5
Considering the entire record before us, including this appellant’s demonstrated
propensity to attempt to shape the evidence as favorably as possible to her advantage,6
and in light of the discretion accorded to a military judge when evaluating the providence
of an accused’s guilty plea, we find nothing in the appellant’s meandering, off again-on
again statements during the Care inquiry to reveal a substantial basis in law or fact
sufficient to cause us to question the plea. See Inabinette, 66 M.J. at 322. Rather, those
statements reflect the reality Judge Cox observed in United States v. Garcia,
44 M.J. 496, 498 (C.A.A.F. 1996) (citing United States v. Penister, 25 M.J. 148, 153
(C.M.A. 1987)):
Often an accused is reluctant to admit to a particular aspect of an offense.
However, that should not vitiate his guilty plea if he recognizes that the
evidence against him will prove the point, and he admits his guilt to the
offense. We should not overlook human nature as we go about the business
of justice. One aspect of human beings is that we rationalize our behavior
and, although sometimes the rationalization is “inconsistent with the plea,”
more often than not it is an effort by the accused to justify his misbehavior.
A good trial judge can usually sort out the guilty plea and determine if an
accused is so pleading because he has committed the offense charged.
In the case before us, we believe the trial judge effectively sorted out the
appellant’s narrative and appropriately accepted her guilty plea. Accordingly, as to the
Specification of Charge IV, we find the military judge did not abuse his discretion by
accepting the appellant’s plea of guilt, and we affirm the finding, excepting the words
“military property.”
Sentence Reassessment
Having found error regarding the theft of BAH as constituting military property,
we must consider whether we can reassess the sentence or whether we must return the
5
Our dissenting colleague mistakes our description of the appellant’s statements in this regard as “reluctance to
admit guilt.” We instead consider such statements to constitute the appellant’s efforts to downplay the wrongfulness
of her conduct without directly challenging its criminality.
6
The appellant was also convicted of wrongfully endeavoring to influence SrA NMK’s testimony as a witness
during the Appellant’s Article 32, UCMJ, investigation by, inter alia, providing SrA NMK with a handwritten list of
things she should tell the investigation officer regarding the nature of their relationship and when it started.
10 ACM 38241
case for a rehearing on sentence. To validly reassess a sentence to purge the effect of
error, we must be able to (1) Discern the extent of the error’s effect on the sentence; and
(2) Conclude with confidence that, absent the error, the panel would have imposed a
sentence of at least a certain magnitude. See United States v. Buber, 62 M.J. 476, 479
(C.A.A.F. 2006) (citing United States v. Hawes, 51 M.J. 258, 260 (C.A.A.F. 1999);
United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002); United States v. Taylor,
51 M.J. 390, 391 (C.A.A.F. 1999)). We must also determine that the sentence we
propose to affirm is “appropriate,” as required by Article 66(c), UCMJ,
10 U.S.C. § 866(c). “In short, a reassessed sentence must be purged of prejudicial error
and also must be ‘appropriate’ for the offense involved.” United States v. Sales,
22 M.J. 305, 308 (C.M.A. 1986).
This Court has “broad discretion” when reassessing sentences. United States v.
Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court has often held that if
we “can determine to [our] satisfaction that, absent any error, the sentence adjudged
would have been of at least a certain severity, then a sentence of that severity or less will
be free of the prejudicial effects of error.” United States v. Sales, 22 M.J. 305, 308
(C.A.A.F. 1986). This analysis is based on a totality of the circumstances with the
following as illustrative factors: dramatic changes in the penalty landscape and exposure,
the forum, whether the remaining offenses capture the gravamen of the criminal conduct,
whether significant or aggravating circumstances remain admissible and relevant, and
whether the remaining offenses are the type that we as appellate judges have experience
and familiarity with to reliably determine what sentence would have been imposed at
trial. Winckelmann, 73 M.J. at 15-16.
We recognize that, in this case, our action reduces the maximum permissible
sentence the appellant faced from 23 years confinement to 13 years and 6 months
confinement, while all other aspects of the maximum punishment remain the same.
Nonetheless, our review of the record reveals that the assault with a loaded firearm
charge was the primary focus of the trial, and the other charges were essentially viewed
as collateral matters. The victim of this crime was a fellow military member and a
former romantic interest of the appellant. The appellant put a loaded firearm to her head
repeatedly and asked her why she should allow her to live.
We are convinced beyond a reasonable doubt that had the military judge accepted
a plea to the lesser included offense of larceny of non-military property, rather than the
greater offense of larceny of military property, he would have adjudged a sentence of at
least a dishonorable discharge, confinement for 30 months, forfeiture of all pay and
allowances, reduction to E-1, and a reprimand. Therefore, we reassess the sentence to the
sentence that was approved: a dishonorable discharge, confinement for 30 months,
forfeiture of all pay and allowances, reduction to E-1, and a reprimand. Furthermore, we
find the sentence, as reassessed, to be appropriate. See United States v. Peoples,
29 M.J. 426, 427-28 (C.M.A. 1990).
11 ACM 38241
Conclusion
The approved findings, as modified, and the sentence, as reassessed, are correct in
law and fact, and no error prejudicial to the substantial rights of the appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed,
54 M.J. 37, 41 (C.A.A.F. 2000). Accordingly, the findings, as modified, and the
sentence, as reassessed, are
AFFIRMED.
Judge Wiedie, concurring in part and dissenting in part.
I agree with the majority’s conclusion that, based on the previous holdings of this
Court, BAH is not “military property.” As such, I concur with their holding with respect
to modifying the findings to strike the “military property” language from the larceny
specification. I dissent, however, from their conclusion that the appellant providently
pled to larceny of BAH for a period covering the entire charged timeframe.7
I respectfully believe the majority fails to distinguish the difference between
whether the appellant was in a legally valid marriage versus whether she providently pled
to larceny of property of a value over $500. The issue this Court must address is whether
“there is something in the record of trial, with regard to the factual basis or the law that
would raise a substantial question regarding the appellant’s guilty plea.” United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). To be guilty of larceny, one’s obtaining of
property must be accomplished by false pretenses with a criminal state of mind.
Without a doubt, when the appellant took her marriage certificate to the finance
office on the day of her marriage, she had a criminal state of mind. At that time, the
reason for her marriage was to live off base and receive BAH. However, the appellant
stated in her Care inquiry that within “a few days . . . , a week, a week and a half” she
and A1C JTY decided to try to make the marriage work. The appellant said she thought
she was legally married and they acted like husband and wife. Although they
subsequently gave up their attempt at making the marriage work, they did, according to
the appellant’s statements to the military judge, live as husband and wife soon after the
marriage ceremony.
If the appellant had a valid marriage license, believed she was married, and
conducted herself as though she was married, there is a substantial question whether her
criminal state of mind continued past the first three to ten days of the marriage. The
7
For the reasons articulated hereinafter, I would affirm a finding of guilty to larceny, but would except the words
“of a value over $500” and substitute therefore the words “of some value.”
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BAH monies received from the time of her marriage until she and A1C JTY attempted to
make a go of the marriage were certainly obtained with a criminal state of mind. It
cannot be said, however, that any BAH monies received after they decided to live as
husband and wife were obtained by false pretenses with a criminal state of mind, at least
based on the comments of the appellant in her Care inquiry. See United States v. Care,
40 C.M.R. 247 (C.M.A. 1969). Her plea was provident to larceny of some amount of
money, but the information elicited from her during the providency inquiry failed to
establish the amount obtained was greater than $500.
Implicit in this conclusion is a determination that BAH is a severable payment as
opposed to a single payment stream. I believe the larceny of BAH over a period of time
is not a single larceny. I reach this conclusion because while BAH will be paid each
month after the entitlement is established unless the payee takes some affirmative action
to inform the finance office they are no longer eligible, eligibility is determined on a day
to day basis. If an individual becomes entitled to BAH on the 15th day of a month with
30 days, she would not be paid BAH for the entire month. Rather, her entitlement would
be determined based upon the percentage of the month she was entitled to BAH.
Conversely, if a person somehow became ineligible for BAH on the 15th day of a month
with 30 days, she would still be entitled to a prorated BAH covering 15 days.
Here, I believe the appellant was not entitled to BAH during the time period she
acknowledges that her marriage was a sham because she was not otherwise eligible to
live off base and receive BAH and she had, at that time, the requisite criminal state of
mind. However, her statements in the Care inquiry raise a substantial basis in fact and
law to question the providency of her plea covering the time period when she claims she
believed she was actually legally married and acted in accordance with that belief. If she
was in a valid marriage, she would have been entitled to BAH. Aside from conclusory
statements from the appellant, the record fails to reasonably establish that she did not
believe her marriage, once she and A1C JTY treated it as a real marriage, would have
entitled her to BAH. As such, the record fails to disclose evidence that she had a criminal
state of mind in accepting such entitlements.
The issue at hand is clearly distinguishable from the Navy-Marine Corps Court of
Criminal Appeals (NMCCA) decision in United States v. Lepresti, 52 M.J. 644(N.M.C.C.A. 1999) and the Army Court of Criminal Appeals (ACCA) decision in
United States v. Hines, ARMY 20120024 (A.C.C.A. 24 May 2013) (unpub. op.), rev’d,
73 M.J. 119 (C.A.A.F. 2014). In Lepresti, the NMCCA adopted a three-part test to
determine whether the theft occurring over multiple months amounted to a single theft.
See Lepresti, 52 M.J. at 653. The ACCA rejected the NMCCA’s approach and found that
theft of BAH over multiple months consisted of a separate larceny each month.
See Hines, unpub. op. at 2, rev’d, 73 M.J. 119 (C.A.A.F. 2014). In both Lepresti and
Hines, there was no issue concerning whether the appellant’s criminal intent continued
throughout the charged timeframe. Rather, the issue faced by both courts was whether
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the amounts of money improperly received could be aggregated for purposes of finding
that a theft was in the amount of a value over $500, thereby increasing the potential
punishment. Id.; Lepresti, 52 M.J. at 653. The holdings in these cases are inapplicable to
the present case because the appellant’s Care inquiry responses raised substantial
questions whether her criminal intent existed throughout the charged timeframe.
I disagree with the majority’s characterization of the appellant’s Care inquiry
statements as a mere reluctance to admit her guilt. To the contrary, the record shows she
wanted to plead guilty, likely to preserve the pretrial agreement she had entered into with
the Government, but her statements to the military judge failed to establish her guilt as
charged. I find it peculiar that the majority assumes she was vacillating on the larceny
charge, yet she did not do so on the much more serious charge of assault with a loaded
firearm. Viewing the Care inquiry as a whole, the statements of the appellant appear to
be a straightforward recounting of her actions and subjective beliefs during the course of
the marriage. The Care inquiry is replete with examples indicating the appellant’s belief
she was involved in a legally valid marriage, at least after the time she and A1C JTY tried
to make a go of the marriage.
In the initial portion of the Care inquiry, there were at least six occasions when the
appellant used qualifying language in answering questions about her intent for the
marriage. Each of these responses clearly expressed an initial intent to enter into a sham
marriage, but also raised the question of how long such an intent continued. The military
judge noted the qualifying language and asked her about it. The appellant reaffirmed her
intent at the time of the marriage ceremony did not involve an intent to live as husband
and wife. She said, however, they “actually decided to give it a try” because they had
been living together and they “felt like [they] could make it work.” The military judge
questioned when they decided to try to make the marriage work, and the appellant
responded “a few days . . . , a week, a week and a half” after they were married.
Although the suggestion to try to make the marriage work originated with A1C JTY, the
appellant said she was willing to try because they had dated before, and she was willing
to try to establish a life together with him. In response to the military judge’s questions,
the appellant stated she thought she was really married, and they acted like a married
couple by doing the things married couples do. She said she and A1C JTY would go out,
share money, spend time together and be intimate, “the things that anybody in
a . . . committed relationship would do except for the fact that we were legally married.”
After the military judge questioned whether the marriage was a sham based on the
appellant’s answers, the appellant conferred with her counsel and attempted to alleviate
the military judge’s concerns. Her answers, however, did nothing to shed more light on
the issue. Rather, she explained that she thought she was guilty of the offense because
she and A1C JTY eventually gave up trying to make the marriage work and separated.
A1C JTY moved to Texas, but they had not, as of the court-martial, taken steps to get an
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annulment or divorce although they had discussed it. Furthermore, even after A1C JTY
returned to Texas, the appellant would send him money when he needed it.
The appellant never successfully articulated why she was guilty of the larceny
offense with respect to the time period after she attempted to make the marriage work.
Each time she was asked why she was guilty of this offense, she provided an answer that
failed to express a legal and factual basis for her guilt. In the end, her plea was accepted
based on her conclusory statement that she was guilty of the offense. Our system
mandates rejection of a guilty plea if an accused “sets up matter inconsistent with the
plea.” Article 45(a), UCMJ, 10 U.S.C. § 845(a). Our practice differs from other federal
courts that permit an accused to plead guilty even though he personally professes
innocence by making an Alford plea. See North Carolina v. Alford, 400 U.S. 25 (1970).
In this case, the appellant did not provide an adequate factual and legal basis for why she
was guilty. Her statements during the providency inquiry were patently inconsistent with
a criminal intent.
The majority concludes the marriage was not valid at its inception and never
became valid. Unlike the majority, I see no need to answer this question because it is
immaterial to the issue at hand. The validity of the marriage does not control whether the
appellant had the criminal state of mind necessary to be guilty of larceny. If an
individual is “married” by a person who, unbeknownst to him, has no authority to
perform a marriage ceremony, would that person be guilty of the BAH larceny for
receiving with dependent rate based on that marriage? No. They might be required to
pay the money back, but they cannot be said to be guilty of larceny of the money because
they did not have the necessary criminal state of mind.
The appellant’s situation is somewhat similar. The question is not whether the
marriage in question is legally valid. The question is whether the appellant thought the
marriage was valid and legally entitled her to BAH. While she was clearly guilty of
larceny of BAH for the time period when she was in the marriage for the sole purpose of
receiving BAH, the same cannot be said for the time period when she thought she was in
a legally valid marriage and was attempting to make that marriage work. It simply does
not matter whether she was legally married or not; she thought she was legally married
and, at least on the record before us, it cannot be said that she had the requisite criminal
state of mind during the vast majority of the charged timeframe.
The majority’s statement that “we now . . . hold a marriage that is a sham at its
inception remains a sham for purposes of acquiring housing allowances to which one or
both parties to that sham marriage would not otherwise be entitled” is overly broad
because it fails to adequately address the intent necessary to commit a larceny. The
majority opinion glosses over this issue stating “[o]ur jurisprudence recognizes . . .[a]
person wrongfully in possession of another’s property commits that offense the moment
he forms an intent to permanently deprive the rightful owner of its possession . . . [i]t
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does not matter if he harbors that intent for only a second, or if he returns the property, or
later pays the owner five times its worth.”
If this case involved a single payment, I would not disagree with the majority’s
statement of the law. However, this case does not involve a single payment. While the
appellant’s change of heart and decision to attempt to make her marriage work does not
erase the criminal intent she had when she initially began to improperly receive BAH, it
does call into question the providency of her plea for the subsequent time period.
Contrary to the majority’s assertion, this case is distinguishable from Bolden,
28 M.J. 127 (C.M.A. 1989), in several aspects. In Bolden, there was no indication that
the “married” couple ever intended to live as husband and wife. See generally, id. Thus,
there was never any question whether the criminal state of mind continued for the entire
time they received BAH. Id. Additionally, the appellant in Bolden was not a party to the
marriage; he simply arranged the marriage for a fraudulent purpose. Id. As a charged
coconspirator, Bolden aided and abetted one of the parties to the marriage in receiving
allowances to which he was not entitled. Id. The crime was completed once there was an
agreement to commit an offense and an overt act in furtherance of that crime (in that
case, the marriage).
I am troubled by the majority’s reliance on what was not in the record to uphold
the guilty plea as opposed to relying on what is in the record. The questions the majority
indicates were left unanswered are just that, unanswered. This Court should not fill in the
blanks of a Care inquiry in an attempt to uphold the providency of a plea that is not
supported by that appellant’s statements. Contrary to the majority’s assertion, it is not
my characterization that the appellant and A1C JTY “lived together as husband and
wife.” Rather, that is what the appellant said during her Care inquiry.
This Court may rely on reasonable inferences to uphold the providency of a plea,
but we should not engage in wild speculation to do so. In addressing the appellant’s
statement that she and A1C JTY shared money, the majority seems distressed by the fact
the appellant did not provide her bank statements to support this claim. However, the
uncontradicted statement of the appellant was that they did share money, as a husband
and wife would do.8 I refuse, unlike the majority, to rely on what was not in the Care
inquiry. Rather, I would rely on what is in the Care inquiry to determine whether there is
a legal and factual basis supporting an appellant’s plea. I am unfamiliar with any case
8
I would also note that the majority suggests the appellant did not feel an obligation to financially support A1C JTY
because he was her husband. (“Nothing about her statement suggests her inclination to ‘help out’ A1C JTY
financially was in any way related to their sham marriage, or that she was lawfully responsible for A1C JTY because
he was her spouse.”) I agree that appellant stated she gave him money “[b]ecause he needed it, and I’ve always
been there for him to help him out, whatever he needed” but am baffled by the majority’s willingness to ignore her
statement that “I was required to provide him support.” The appellant’s primary reason for providing the money is
not the issue. She recognized, at least based on her statements in the Care inquiry, that she had a legal obligation to
provide support to A1C JTY because she was receiving BAH at the with dependent rate.
16 ACM 38241
where this Court upheld the providency of a plea based on what was not in the record,
and I refuse to do so in this case.
FOR THE COURT
STEVEN LUCAS
Clerk of the Court
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