United States v. Perkins

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39595
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UNITED STATES
Appellee
v.
Rodger E. PERKINS
Major (O-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 28 August 2020
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Military Judge: Shelly W. Schools.
Approved sentence: Dismissal. Sentence adjudged 2 October 2018 by
GCM convened at Joint Base Andrews, Maryland.
For Appellant: Major David A. Schiavone, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Zachary T.
West, USAF; Mary Ellen Payne, Esquire; Andrew J. Quillen (civilian intern). 1
Before MINK, KEY, and ANNEXSTAD, Appellate Military Judges.
Judge ANNEXSTAD delivered the opinion of the court, in which Senior
Judge MINK and Judge KEY joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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ANNEXSTAD, Judge:
A general court-martial composed of a military judge sitting alone
convicted Appellant, in accordance with his pleas and pursuant to a pretrial
1Mr. Quillen was a legal intern with the Air Force Legal Operations Agency and was
at all times supervised by attorneys admitted to practice before this court.
United States v. Perkins, No. ACM 39595
agreement, of one specification of dereliction of duty, two specifications of
conduct unbecoming an officer and gentleman, and three specifications of
making false statements concerning a Federal Housing Administration (FHA)
loan application, in violation of Articles 92, 133, and 134, 2 Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 892, 933, 934. 3 The military judge
sentenced Appellant to be dismissed from the service. The convening authority
approved the sentence as adjudged.
On appeal, Appellant personally raises a single assignment of error (AOE):
whether Appellant’s plea of guilty to conduct unbecoming an officer and
gentleman was improvident when the military judge failed to adduce more
than mere conclusions that text messages Appellant sent dishonored and
disgraced him. 4 Appellant also filed a supplemental AOE claiming relief under
United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), is warranted due to the
violation of the 18-month standard for appellate review established in United
States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).
We find Appellant’s conviction both legally and factually sufficient, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Thus, we affirm the findings and sentence.
I. BACKGROUND
From 2009 until 2016, Appellant was a Special Agent with the Air Force
Office of Special Investigations (AFOSI). In 2013, while he was deployed,
Appellant began communicating with KS. Appellant had known KS since they
were in middle school together. At some point following his deployment,
Appellant and KS began to casually see each other, but did not have an
exclusive relationship. Appellant shared with KS that he was in the military
and that he worked for AFOSI, which he characterized as a federal law
enforcement agency analogous to the Federal Bureau of Investigation (FBI).
Appellant knew that KS was interested in becoming an FBI agent and offered
to help train KS on firearms and marksmanship in order to help make her a
more competitive applicant. In the spring of 2016, Appellant socialized with
KS, her friends, and at least one family member at a local karaoke bar. On that
occasion, KS introduced Appellant as her boyfriend. This was the last time
Appellant and KS physically saw each other.
2All specifications of Charge III allege a violation of 18 U.S.C. § 1014 and were charged
as Clause 3 violations of Article 134, UCMJ.
3All references in this opinion to the Uniform Code of Military Justice (UCMJ) are to
the Manual for Courts-Martial, United States (2016 ed.).
4This issue was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).
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In July 2016, Appellant married SP. Subsequently, in August 2016, KS
learned through a friend that Appellant was now possibly married, and
reached out to him via text message and phone calls to confront him about his
relationship with SP. In response, Appellant created an email account using
the name of his spouse and—posing as SP—exchanged multiple emails with
KS. In those emails, Appellant directed KS not to contact either of them
anymore. At the same time, using his own cellphone, Appellant also exchanged
text messages with KS and in a series of messages on or about 15 August 2016,
Appellant told KS, “I too am a lawyer whore,” and “[y]ou are f**king with the
wrong one.” The messages also contained KS’s first name, middle name, and
social security number, followed by “[d]o not f**k with me!” That same day,
feeling threatened, KS wrote a final email to Appellant requesting that he stop
all contact with her. On 16 August 2016, believing that her personal
information was breached through government access, KS reported these text
messages to civilian law enforcement authorities. Around the same time,
Appellant created and sent a fraudulent “cease and desist” order to KS. The
“cease and desist” letter appeared to have been indorsed and approved by the
Deputy Director of the FBI and was received by KS on or about 17 August 2016.
Subsequently, KS filed complaints with both the FBI and the Office of the
Inspector General of the Department of Defense advising them of Appellant’s
actions and the suspected security breach.
At trial, Appellant pleaded guilty to one specification of willful dereliction
of duty on divers occasions, for wrongfully using a law enforcement computer
data system on multiple occasions to conduct unauthorized searches of
individuals, including KS, for personal reasons. Appellant also pleaded guilty
to two specifications of conduct unbecoming an officer and gentleman. The first
of these two specifications stemmed from the threatening text messages
Appellant sent to KS and the second concerned the creation of the fraudulent
“cease and desist” letter; Appellant only takes issue with the first specification
on appeal. Finally, Appellant pleaded guilty to three specifications related to
false statements he made while trying to obtain an FHA loan.
During Appellant’s court-martial, the Government’s primary evidence
consisted of a 178-page stipulation of fact, agreed to by the parties, and the
verbal exchange of information between the military judge and Appellant
during various phases of the court-martial.
II. DISCUSSION
A. Providence of Plea
Appellant argues that his plea of guilty to the second specification of
conduct unbecoming an officer and gentleman was improvident because the
military judge failed to adduce more than mere conclusions that the text
messages sent by Appellant dishonored and disgraced him. We disagree.
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1. Law
“A military judge’s decision to accept a guilty plea is reviewed for abuse of
discretion.” United States v. Forbes, 78 M.J. 279, 281 (C.A.A.F. 2019) (citing
United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)). “During a guilty plea
inquiry the military judge is charged with determining whether there is an
adequate basis in law and fact to support the plea before accepting it.” Id.
(citing United States v. Inabinette, 66 M.J. 320, 321–22 (C.A.A.F. 2008)). “It is
not enough to elicit legal conclusions.” United States v. Jordan, 57 M.J. 236,
238 (C.A.A.F. 2002). “The military judge must elicit facts to support the plea of
guilty.” Id. The burden is on the appellant to establish that the military judge
abused his discretion. United States v. Phillips, 74 M.J. 20, 21–22 (C.A.A.F
2015) (citation omitted). An abuse of discretion occurs when “the military
judge’s decision on the issue at hand is outside the range of choices reasonably
arising from the applicable facts and the law.” United States v. Miller, 66 M.J.
306, 307 (C.A.A.F. 2008) (citation omitted). Specifically, the United States
Court of Appeals for the Armed Forces (CAAF) explained “it is not that the
judge is maybe wrong or probably wrong,” but rather it must strike us as
“‘wrong with the force of a five-week-old, unrefrigerated dead fish.’” United
States v. Byrd, 60 M.J. 4, 12 (C.A.A.F. 2004) (J. Crawford concurring) (quoting
United States v. French, 38 M.J. 420, 425 (C.M.A. 1994)). “This is an area in
which the military judge is entitled to ‘significant deference.’” United States v.
Timsuren, 72 M.J. 823, 828 (A.F. Ct. Crim. App. 2013) (quoting Inabinette, 66
M.J. at 322).
In pleading guilty to the violation of Article 133, UCMJ, Appellant agreed
he (1) “did or omitted to do certain acts; and (2) that, under the circumstances,
these acts or omissions constituted conduct unbecoming an officer and
gentleman.” Manual for Courts-Martial, United States (2016 ed.), pt. IV, ¶ 59b.
“An officer’s conduct need not violate other provisions of the UCMJ or even be
otherwise criminal to violate Article 133, UCMJ.” United States v. Meakin, 78
M.J. 396, 403 (C.A.A.F. 2019) (citing United States v. Lofton, 69 M.J. 386, 388
(C.A.A.F. 2011)). “The gravamen of the offense is that the officer’s conduct
disgraces him personally or brings dishonor to the military profession such as
to affect his fitness to command the obedience of his subordinates so as to
successfully complete the military mission.” Meakin, 78 M.J. at 403 (citation
omitted). A conviction is legally sufficient so long as there is some evidence of
either of these two outcomes, upon which a “reasonable factfinder could have
found all the essential elements beyond a reasonable doubt.” Id. at 400–01
(citation omitted); United States v. Roderick, 62 M.J. 425, 429 (C.A.A.F. 2006)
(citation omitted).
2. Analysis
The military judge did not abuse her discretion in accepting Appellant’s
guilty plea because she had sufficient evidence to find that Appellant’s threats
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against KS, including the use of sensitive personal information and profanity,
disgraced him personally and represented a significant departure from the
standards of conduct for an officer and gentleman. In fact, Appellant
repeatedly expressed his belief during the plea colloquy that his conduct was
unbecoming of an officer and gentleman and provided a sufficient objective
factual predicate to support that belief.
The military judge began her inquiry by explaining what a guilty plea
entailed and what rights Appellant forfeited by pleading guilty. She asked
Appellant, on multiple occasions, if he understood what she was explaining,
and Appellant repeatedly replied “Yes, Your Honor.” The military judge then
defined the stipulation of fact as a formal agreement between Appellant and
the Government and explained that it contained facts and circumstances
surrounding the offenses for which each of the parties agreed were true and
would be used to determine Appellant’s guilt. Appellant acknowledged that he
understood the stipulation of fact when he voluntarily signed it and agreed to
its uses.
Next, the military judge explained the elements of conduct unbecoming of
an officer and gentleman, defined both “wrongful” and “unbecoming,” and
explained the difference between behavior in an official capacity and a personal
capacity. Appellant confirmed he understood each element and definition and
agreed in both the stipulation of fact and to the military judge that it accurately
described his conduct as charged.
In his own words, Appellant told the military judge that he “used profane
language,” included KS’s social security number, and “became more
aggressive” in the messages he sent to KS. Appellant further added that the
statements he made to KS and the “manner in which they were made were
conduct unbecoming of an officer and a gentleman in the United States Air
Force.” Appellant acknowledged that he knew “that members of the general
public would not expect an officer to conduct himself in this manner under
those circumstances,” and that he knew his “actions would bring discredit upon
the Air Force . . . in the eyes of the general public.” The military judge then
followed up with clarifying questions to ensure Appellant understood the law
and she understood Appellant’s actions. The military judge specifically asked
Appellant if the point of these messages was to communicate to KS that he
knew how to “get to” her, to which Appellant replied “[that is] correct.”
In the closing discussions on this specification, Appellant admitted to the
military judge that he used the specific language in the specification to include
KS’s social security number, the messages were more than a mere
disagreement, and he understood the messages could be perceived by KS as
threatening. Appellant also admitted that sending threatening messages was
dishonoring and disgracing to him as an officer and detracted from his standing
as an officer, and sending these messages was more than slight misconduct.
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Appellant further agreed that he did not have permission to send the messages,
was not authorized to send the messages, and could have avoided sending them
altogether. In his own words, Appellant acknowledged that there was “no
justification for [him] to respond and use that language at all,” and that his
“emotions” got the best of him. At the end of the plea colloquy, the military
judge again read the elements of the offense to Appellant and he confirmed
that he believed his acts constituted conduct unbecoming an officer and
gentleman. The military judge ended her inquiry by asking if any further
inquiry was necessary on this specification. Both trial counsel and trial defense
counsel replied in the negative.
We conclude the military judge conducted a more than adequate plea
inquiry. She explained the offense and its elements, clarified concepts,
corrected inconsistencies between the plea inquiry and the stipulation of fact,
defined terms, summarized the law, and stopped multiple times to ensure
Appellant’s understanding. Appellant pleaded guilty, voluntarily entered into
a stipulation of fact, and admitted to all the elements of conduct unbecoming
an officer and a gentleman, including that the messages he sent to KS
dishonored and disgraced him and compromised his standing as an officer. The
providence inquiry adequately established both Appellant’s actual guilt and
his personal belief in his guilt, and the military judge determined that there
was an adequate basis in law and fact to accept Appellant’s pleas. We find the
military judge did not abuse her discretion in accepting them.
B. Timeliness of Appellate Review
Additionally, Appellant claims that Tardif relief is warranted in this case
due to a violation of the third Moreno standard. Tardif, 57 M.J. at 223–24; see
Moreno, 63 M.J. at 135 (citations omitted). We decline to grant such relief.
1. Law
We review de novo whether an appellant has been denied the due process
right to a speedy appeal. Moreno, 63 M.J. at 135 (citations omitted). A
presumption of unreasonable delay arises when appellate review is not
completed and a decision rendered within 18 months of a case being docketed.
Id. at 142. A presumptively unreasonable delay triggers an analysis of the four
factors laid out in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of
the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right
to timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135
(citations omitted). A presumptively unreasonable delay satisfies the first
factor, but the Government “can rebut the presumption by showing the delay
was not unreasonable.” Id. at 142. Assessing the fourth factor of prejudice, we
consider the interests of “prevention of oppressive incarceration,”
“minimization of anxiety and concern of those convicted,” and “limitation of the
possibility that . . . grounds for appeal, and . . . defenses . . . might be impaired.”
Id. at 138–39 (citation omitted).
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2. Analysis
Appellant’s case was originally docketed with the court on 20 December
2018. The delay in rendering this decision after 20 June 2020 is presumptively
unreasonable. Appellant was not confined and did not assert his right to a
timely appellate review at any time before the supplemental AOE was filed. In
that AOE, he made no specific claim of prejudice, and we find none.
Finding no Barker prejudice, we also find the delay is not so egregious that
it “adversely affects the public’s perception of the fairness and integrity of the
military justice system.” See United States v. Toohey, 63 M.J. 353, 362
(C.A.A.F. 2006). As a result, there is no due process violation. See id.
Regarding Appellant’s specific claim to Tardif relief, we determine that no
such relief is warranted in the absence of a due process violation. See Tardif,
57 M.J. at 223–24; United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App.
2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016). In Tardif, the CAAF recognized that
“a Court of Criminal Appeals has authority under Article 66(c) to grant relief
for excessive post-trial delay without a showing of ‘actual prejudice’ within the
meaning of Article 59(a).” 57 M.J. at 224 (citation omitted). Furthermore, we
as a service Court of Criminal Appeals are required by Article 66(c), UCMJ, to
determine which findings of guilty and the sentence or part thereof “should be
approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c); see Tardif, 57 M.J. at 224.
Considering all the facts and circumstances of Appellant’s case, we decline to
exercise our Article 66(c), UCMJ, authority to grant relief for the delay in
completing appellate review.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
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Accordingly, the findings and the sentence are AFFIRMED. 5
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
5 We note, as highlighted by appellate defense counsel, that the general court-martial
order (CMO), dated 12 December 2018, contains three errors that require correction.
These errors are found in Specification 1, Specification 2, and Specification 3 of Charge
III. In Specification 1, Appellant was charged with stating a certain address would be
his principal residence, even though Appellant would not occupy that residence; the
CMO omits the word “not.” Specification 2 is written that Appellant would not occupy
the address as his principal residence; the CMO omits the words “as his principal
residence.” Specification 3 on the CMO is also incorrect in that it omits the words “as
their principal residence.” Appellant has not claimed prejudice and we find none. We
direct a corrected CMO to remedy these errors.
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