United States v. Acevedo

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Jorge F. ACEVEDO, Staff Sergeant
United States Army, Appellant
No. 17-0224
Crim. App. No. 20150076
Argued November 28, 2017—Decided February 6, 2018
Military Judge: Samuel A. Schubert
For Appellant: Captain Joshua B. Fix (argued); Lieutenant
Colonel Christopher D. Carrier, Lieutenant Colonel Melissa
R. Covolesky, and Captain Katherine L. DePaul (on brief);
Captain Bryan A. Osterhage.
For Appellee: Captain Sandra L. Ahinga (argued); Colonel
Mark H. Sydenham, Lieutenant Colonel A. G. Courie III,
Major Melissa Dasgupta Smith, and Captain Jennifer A.
Donahue (on brief); Major Virginia H. Tinsley and Captain
Austin L. Fenwick.
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge STUCKY, Judge OHLSON, and
Senior Judge EFFRON, joined. Judge RYAN filed a
separate dissenting opinion.
_______________
Judge SPARKS delivered the opinion of the Court.
Contrary to his plea at a general court-martial,
Appellant was convicted by an enlisted panel of kidnapping,
in violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934 (2012). The panel sentenced
Appellant to one year of confinement, reduction in rank to
E-1, and a bad-conduct discharge. The convening authority
approved the sentence, waiving the mandatory forfeitures
under Article 58b, UCMJ, 10 U.S.C. § 858b, for a period of
six months for the benefit of Appellant’s wife. The United
States Army Court of Criminal Appeals summarily affirmed
the findings and sentence. Appellant then petitioned this
United States v. Acevedo, No. 17-0224/AR
Opinion of the Court
Court, and we granted review on four issues, but we need
only address the following issue:1
WHETHER THE EVIDENCE IS LEGALLY
INSUFFICIENT TO SUPPORT A CHARGE OF
KIDNAPPING BY INVEIGLEMENT.
We hold that the evidence was legally sufficient and
therefore affirm the decision of the lower court.
I. Background
In January 2014, nineteen-year old Private E-2 (PV2)
AM completed advanced individual training and was then
assigned to the Defense Language Institute in Monterey,
California to learn Arabic. In March 2014, PV2 AM went to
a local bar to meet her boyfriend, RM. PV2 AM consumed
one or two alcoholic drinks while waiting for RM to arrive.
After RM arrived, PV2 AM observed Appellant, a
noncommissioned officer (NCO) in her platoon, and Sergeant
(SGT) EB sitting nearby at the bar. When RM went to the
bathroom, PV2 AM decided to go over and greet Appellant
and SGT EB. PV2 AM testified that when RM returned and
told her it was time for them to leave, Appellant became
aggressive and told RM, “[y]ou’re not taking my solider
anywhere.... I saw her drinking, if she doesn’t get in a cab
and go back to base, I’m going to report her for drinking.”
PV2 AM testified Appellant then grabbed her arm to prevent
her from leaving with RM.2 PV2 AM started crying and
indicated she wanted to leave with RM and not return to
base. In an attempt to defuse the situation, RM testified he
told Appellant, “I don’t want her to get in trouble …. I’ll take
her back to base. That’s fine.” Appellant reacted by getting
in RM’s face and stating, “[t]here’s no f***ing way you’re
taking my soldier anywhere.” RM informed Appellant he did
1 The other three granted issues, without briefs, asked
whether a judge could simultaneously sit on a Court of Criminal
Appeals and on the United States Court of Military Commissions
Review. At the time of the grant, these issues had already been
resolved in favor of the Government per the Court’s decision in
United States v. Ortiz, 76 M.J. 125 (C.A.A.F. 2017) (summary
disposition, preceding release of opinion); 76 M.J. 189 (C.A.A.F.),
cert. granted, 138 S. Ct. 54 (2017).
2 The panel acquitted Appellant of assaulting PV2 AM by
unlawfully grabbing her arm with his hand, in violation of Article
128, UCMJ, 10 U.S.C. § 928.
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Opinion of the Court
not want any trouble, and Appellant replied, “[w]ell then,
you know, you are going to turn around and walk away and
we’re gonna put her in a cab.” RM then left the bar alone.
Following RM’s departure, PV2 AM left the bar with
Appellant and SGT EB. PV2 AM testified she assumed they
would get her a taxi to take her back to base. After the taxi
arrived, however, Appellant unexpectedly followed behind
her into the taxi, and gave the driver an address she
assumed was his home address. Appellant then closed the
taxi door and the driver drove away. During the taxi ride,
PV2 AM testified Appellant pulled her next to him and held
her hand while Appellant chatted with the driver. Appellant
and PV2 AM did not speak during the five to ten-minute
ride. When they arrived at Appellant’s apartment, PV2 AM
exited the taxi because she was “afraid that if I did
something other than what I knew he wanted me to do, he
[would] just go ahead and tell my command that I been
drinking under age.”
Outside his apartment, Appellant asked PV2 AM, “[d]o
you know what’s about to happen?” and she nodded and
said, “[y]es.” Appellant replied, “[n]o, I want you to tell me,”
and PV2 AM responded, “[w]e’re going to f**k.” Appellant
then asked, “[a]re you okay with this? If not, you can get
back in the cab and leave.” PV2 AM nodded her head in a
yes motion. Appellant then asked PV2 AM to wait outside
while he checked to see if his roommate was home. When
Appellant returned, they entered his apartment and
engaged in sexual activity.3 In the morning, Appellant called
a taxi for PV2 AM to take her back to base, gave her $20 to
pay for the cab, and told her not to tell anyone what
happened.
II. Discussion
We review challenges to the legal sufficiency of the
evidence de novo. United States v. Herrmann, 76 M.J. 304,
307 (C.A.A.F. 2017). “The standard for determining the legal
sufficiency of evidence supporting a guilty verdict is
‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
3 As to this sexual activity, Appellant was acquitted of five
specifications of sexual assault and two specifications of forcible
sodomy, in violation of Articles 120 and 125, UCMJ, 10 U.S.C.
§§ 920, 925.
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Opinion of the Court
have found the essential elements of the crime beyond a
reasonable doubt.’ ” United States v. Mack, 65 M.J. 108, 114
(C.A.A.F. 2007) (quoting Jackson v. Virginia, 443 U.S. 307,
318–19 (1979)). In applying this test, all inferences and
credibility determinations must be drawn in favor of the
prosecution. United States v. Pritchett, 31 M.J. 213, 216
(C.M.A. 1990).
The elements of the offense of kidnapping are:
(1) That the accused seized, confined, inveigled,
decoyed, or carried away a certain person;
(2) That the accused then held such person against
that person’s will;
(3) That the accused did so willfully and wrongfully;
and
(4) That, under the circumstances, the conduct of the
accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
Manual for Courts-Martial, United States pt. IV, para. 92.b.
(2016 ed.) (MCM).
The kidnapping charge was prosecuted under the theory
that Appellant willfully and wrongfully inveigled PV2 AM
and held her against her will. Because Appellant contests
only the first three elements to this kidnapping, we limit our
legal sufficiency review to these elements. Furthermore, we
need not address any event that occurred after the taxi ride
in the course of our analysis of the assigned issue because
the Government conceded at oral argument, and we agree,
that the kidnapping was completed at the end of the taxi
ride.
As to the first element, the MCM provides that
“ ‘[i]nveigle’ means to lure, lead astray, or entice by false
representations or other deceitful means. For example, a
person who entices another to ride in a car with a false
promise to take the person to a certain destination has
inveigled the passenger into the car.” MCM pt. IV, para.
92.c.(1). The record before us shows Appellant told PV2 AM
he would report her for underage drinking unless she took a
taxi back to base. However, when PV2 AM entered the taxi,
Appellant followed her into the taxi and gave the driver his
home address. Consequently, a rational trier of fact could
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Opinion of the Court
have found beyond a reasonable doubt that PV2 AM was
inveigled by Appellant into entering the taxi under the false
representation she was being taken to base. See United
States v. Blocker, 32 M.J. 281, 285–86 (C.M.A. 1991)
(affirming kidnapping conviction where the appellant
inveigled seventeen-year-old victim to remain in car when
he drove off highway and down dirt hiking path); see also
United States v. Mathai, 34 M.J. 33, 37 (C.M.A. 1992)
(affirming kidnapping conviction where NCO appellant
inveigled victim into his office by stating, “[f]ollow me,
Private”).
As to the second element, the MCM provides that the
term holding “ ‘[a]gainst that person’s will’ means the victim
was held involuntarily.” MCM pt. IV, para. 92.c.(3).
Appellant contends PV2 AM was not held against her will
because she had many opportunities to leave during the taxi
ride. We recognize a passenger in a taxi normally has as
much control over the taxi as another passenger. However,
the MCM explains, “[t]he involuntary nature of the
detention may result from force, mental or physical coercion,
or from other means, including false representations.” MCM
pt. IV, para. 92.c.(3). Furthermore, “[e]vidence of the
availability or nonavailability to the victim of means of exit
or escape is relevant to the voluntariness of the detention, as
is evidence of threats or force, or lack thereof, by the accused
to detain the victim.” Id.
Under the unique facts of this case, a rational trier of
fact could have found Appellant’s previous threat of
disciplinary action mentally coerced PV2 AM into staying in
the taxi against her will. PV2 AM testified although she did
not want to be in the taxi with Appellant, she nonetheless
remained in the vehicle because she thought Appellant
would report her for underage drinking if she left. PV2 AM
was in a vulnerable position in the taxi having only recently
entered military service, and Appellant’s threat of
disciplinary action could reasonably have been perceived by
her as career-ending. The case for mental coercion here is
particularly persuasive given the additional factor of
significant rank disparity.4 Drawing all inferences in favor
of the Government, a reasonable trier of fact could have
4 Appellant acknowledged their rank disparity at the bar when
he told RM, “[y]ou’re not taking my soldier anywhere.” (Emphasis
added.)
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Opinion of the Court
found beyond a reasonable doubt that Appellant held PV2
AM against her will during the taxi ride through mental
coercion.
As to the third element, the MCM explains “[w]illfully”
means Appellant must have “specifically intended” to hold
PV2 AM against her will, and “[a]n accidental detention will
not suffice.” MCM pt. IV, para. 92.c.(4). Intent can be shown
by circumstantial evidence. United States v. Vela, 71 M.J.
283, 286 (C.A.A.F. 2012).
Appellant argues only his actions, not PV2 AM’s
subjective feelings, are circumstantial evidence of his intent.
Appellant contends that from his perspective, PV2 AM
wanted to remain in the taxi after he provided the taxi
driver with his address, as she declined the many
opportunities she had to return to base. Here, the
circumstantial evidence shows Appellant specifically
intended to hold PV2 AM against her will through mental
coercion. First, Appellant separated PV2 AM from her
boyfriend, who was also her ride home. Second, Appellant
did not ask PV2 AM if he could share the taxi with her.
Third, Appellant gave the taxi driver his home address after
he was previously adamant that PV2 AM needed to return
to base. Fourth, during the taxi ride, Appellant pulled PV2
AM close and held her hand. Fifth, Appellant did not talk to
PV2 AM during the duration of the trip. In these
circumstances, a rational trier of fact could conclude beyond
a reasonable doubt that Appellant willfully intended to hold
PV2 AM against her will from the moment he abruptly
followed her into to the taxi until the end of the taxi ride.
Under the somewhat unique circumstances of this case, we
conclude that the evidence is legally sufficient to find
Appellant committed the offense of kidnapping.
III. Conclusion
The decision of the United States Army Court of
Criminal Appeals is affirmed.
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United States v. Acevedo, No. 17-0224/AR
Judge RYAN, dissenting.
Appellant abused his position of authority and likely
should have been charged with the offense of maltreat-
ment.1 He was not. But the answer to the Government’s
charging oversight is not for this Court to find the evidence
of kidnapping legally sufficient.
Kidnapping is one of the most heinous offenses known to
the law. Chatwin v. United States, 326 U.S. 455, 462 (1946);
United States v. Picotte, 12 C.M.A. 196, 199, 30 C.M.R. 196,
199 (1961). Kidnapping, at common law, was defined as
forceful abduction and was considered a felony. Picotte, 12
C.M.A. at 199, 30 C.M.R. at 199. Under the Uniform Code
of Military Justice (UCMJ), it is punishable by life impris-
onment without possibility of parole. Manual for Courts-
Martial, United States pt. IV, para. 92.e. (2012 ed.) (MCM).
The Court’s decision today trivializes both the fear and
force attendant to this serious offense and the horror faced
by true kidnapping victims. In other words, it directly dis-
regards the Supreme Court’s direction in Chatwin, to guard
against the “careless concept of the crime of kidnapping”
and recognition that such a serious offense is not intended
to punish “general transgressions of morality” that do not
meet the statutory elements of kidnapping. 326 U.S. at 464.
I respectfully dissent.
Kidnapping by inveiglement begins at the moment when
the victim is “inveigled” or deceived by the accused, United
States v. Macklin, 671 F.2d 60, 65−66 (2d Cir. 1982), and
ends when a victim is no longer deceived or being held
against his or her will. United States v. Rodriguez-Moreno,
526 U.S. 275, 281 (1999); United States v. Zuni, 273 F.
App’x 733, 742 (10th Cir. 2008). Even the most casual peek
at the actual facts of this case reveals that it is wholly dis-
tinguishable from the usual inveiglement case, where a vic-
1 The elements of the offense of maltreatment are:
(1) That a certain person was subject to the orders of the
accused; and
(2) That the accused was cruel toward, or oppressed, or
maltreated that person.
MCM pt. IV, para. 17.b.
United States v. Acevedo, No. 17-0224/AR
Judge RYAN, dissenting
tim is tricked into entering a vehicle driven by the accused
or by an accomplice of the accused and solely controlled by
the accused. See, e.g., United States v. Blocker, 32 M.J. 281,
282−83 (C.M.A. 1991) (holding the evidence was sufficient
to show kidnapping by inveiglement where the appellant
lured the victim into his vehicle by telling her that he would
take her home but instead drove the car into the woods
where appellant forcibly raped the victim); see also United
States v. Hoog, 504 F.2d 45, 50−51 (8th Cir. 1974) (evidence
legally sufficient to show kidnapping by inveiglement where
the appellant induced the respective victims into accepting
a ride in his truck by false pretenses and to stay in the ve-
hicle during its “roundabout course into Kansas” against
their own will).
“ ‘Against that person’s will’ means that the victim was
held involuntarily.” MCM pt. IV, para. 92.c.(3). And herein
lies my primary disagreement with the majority. Involun-
tariness is the fundamental essence of the crime of kidnap-
ping. Chatwin, 326 U.S. at 464. The involuntary nature of
the detention may result from either physical or non-
physical restraint, i.e., “force, mental or physical coercion,
or from other means including, false representations.”
MCM pt. IV, para. 92.c.(3); see also Chatwin, 326 U.S. at
460 (“[t]he act of holding a kidnapped person for a pro-
scribed purpose necessarily implies an unlawful physical or
mental restraint for an appreciable period against the per-
son’s will and with a willful intent so to confine the victim”).
Notably, “[e]vidence of the availability or nonavailability to
the victim of means of exit or escape is relevant to the vol-
untariness of the detention, as is evidence of threats or
force, or lack thereof, by the accused to detain the victim.”
MCM pt. IV, para. 92.c.(3).
Here, there is zero evidence that PV2 AM was held
against her will. Rather, Appellant and PV2 AM were in a
taxi, a commercial vehicle for hire being driven by a third-
party with no ties to either PV2 AM or Appellant. As recog-
nized by the President’s definition of “[a]gainst the will,”
the availability of an exit or escape is relevant to the volun-
tariness of the detention. PV2 AM, a passenger in a taxi,
was able to indicate to the taxi driver that she wanted to be
taken somewhere else, i.e., “availability [of an] exit.” In-
2
United States v. Acevedo, No. 17-0224/AR
Judge RYAN, dissenting
deed, PV2 AM testified at trial that she heard Appellant
give his own address to the cab driver and correctly inter-
preted it as his address and not her own. PV2 AM, well
aware of where the taxi was directed to go, was free to ei-
ther get out of the taxi or to change the destination at any
point during the taxi ride. See Macklin, 671 F.2d at 66−67
(concluding that even if there was legally sufficient evi-
dence of inveiglement, that there was no evidence whatso-
ever that the two children were “held” against their will
when they were “free to come and go as they pleased, to
speak to other people, and to leave appellant at any time
they wished”).
In addition to no evidence that the putative “kidnap-
ping” victim, PV2 AM, was actually unable to redirect or
leave the cab, neither is there any evidence of either an ac-
tual threat of physical harm to her or fear on her part of
physical harm that overbore her will, as the law requires in
every other instance. See, e.g., Article 120, UCMJ, 10 U.S.C.
§ 920 (2012); Article 122, UCMJ, 10 U.S.C. § 922 (2012);
United States v. Kaplansky, 42 F.3d 320, 324 (6th Cir. 1994)
(recognizing that “the potential for violence against the vic-
tim is an inherent aspect of the crime of kidnapping”). Ra-
ther, the “mental coercion” the majority deems legally suffi-
cient to make her unable to redirect the cab is fear of
getting in trouble for underage drinking. Yet, even that fear
somehow dissipated so as to render her “unkidnapped” once
she exited the cab, perhaps to explain her waiting patiently
and unattended while Appellant checked to make sure “the
coast was clear” so they could have sex undetected by his
roommate. Why this freedom was not similarly constrained
by her “fear,” or concern about her career, is entirely un-
clear.
Whatever level of mental coercion is sufficient, the fear
of getting into trouble is not sufficient “fear” to constitute
mental restraint for this serious felony. In contradistinc-
tion, in United States v. Wesson, the court upheld a kidnap-
ping conviction where the victim was restrained by fear.
779 F.2d 1443 (9th Cir. 1986) (per curiam). In Wesson, ap-
pellant, a truck driver, took a young girl on a ride in his
truck and brutally beat and raped her. Id. at 1444. Even
though there was no indication that the girl was physically
3
United States v. Acevedo, No. 17-0224/AR
Judge RYAN, dissenting
restrained in the truck, the court found that she continued
on the journey despite being raped and beaten because she
was terrified of the consequences if caught trying to escape.
Id. Wesson is clearly distinguishable from the instant case.
While the threshold for legal sufficiency is low, it should
not be so low as to conclude that someone was held against
their will when they were in a commercial vehicle over
which they had equal control, knew where they were actu-
ally going, had no fear of physical harm whatsoever, and
then stayed overnight having sex with the putative kidnap-
per. Today’s ruling is contrary to the precedent of the Su-
preme Court, the federal courts of appeals that have con-
sidered the issue, and our own Court. Chatwin, 326 U.S. at
462; Zuni, 273 F. App’x at 737−38; Wesson, 779 F.2d at
1443−44; Macklin, 671 F.2d at 66−67; Hoog, 504 F.2d at
50−51; Blocker, 32 M.J. at 282−83.
In the current climate, where it appears that neither the
convening authorities nor the lower courts are immune
from external pressures, see, e.g., United States v. Barry,
Dkt. No. 17-0162, Finding and Facts of Conclusion from
DuBay Hr’g 6 (C.A.A.F. 2017) (finding “external pressures
on the military justice system”); United States v. Riesbeck,
__ M.J. __ (1, 5) (C.A.A.F. 2018); United States v. Boyce, 76
M.J. 242, 251 (C.A.A.F. 2017), this Court has a heightened
responsibility to ensure that servicemembers receive fair
and impartial justice, instead of a “rough form of justice.”
United States v. Denedo, 556 U.S. 904, 918 (2009) (Roberts,
C.J., joined by Scalia, J., Thomas, J., and Alito, J., concur-
ring in part and dissenting in part). Rather than being
complicit in saving the Government from its charging over-
sight, and diluting the concept of “mental coercion” to the
degree that the majority has done to salvage a conviction,
we should do as we did in United States v. Bright, 66 M.J.
359 (C.A.A.F. 2008), and call this charge and specification
legally insufficient, as it surely is.
4