United States v. Castillo

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
Appellate Military Judges
UNITED STATES OF AMERICA
v.
NANCY L. CASTILLO
MACHINIST'S MATE FIREMAN (E-3), U.S. NAVY
NMCCA 201300280
SPECIAL COURT-MARTIAL
Sentence Adjudged: 29 March 2013.
Military Judge: CAPT Andrew Henderson, JAGC, USN.
Convening Authority: Commanding Officer, USS RONALD REAGAN
(CVN 76).
Staff Judge Advocate's Recommendation: LCDR G.W. Manz,
JAGC, USN.
For Appellant: LT Carrie Theis, JAGC, USN.
For Appellee: Maj Paul Ervasti, USMC; Capt Matthew Harris,
USMC.
27 May 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
FISCHER, Judge:
A panel of members with enlisted representation, sitting as
a special court-martial, convicted the appellant, contrary to
her pleas, of unauthorized absence, violating a lawful general
order by failing to report her arrest for drunk driving, making
false official statements, and larceny, in violation of Articles
86, 92, 107, and 121, Uniform Code of Military Justice, 10
U.S.C. §§ 886, 892, 907, and 921. The members sentenced the
appellant to reduction to pay grade E-1, a fine of $12,120.00,
and a bad-conduct discharge. Additionally, the members
sentenced the appellant to be confined for twelve months if she
failed to pay the fine. The convening authority approved only
so much of the sentence as provided for reduction to pay grade
E-1, a fine of $5,000.00, and a bad- conduct discharge, and,
except for the punitive discharge, ordered the sentence
executed. 1
The appellant now alleges three assignments of error (AOE).
The appellant first alleges that a requirement in Chief of Naval
Operations Instruction (OPNAVINST) 3120.32C, 2 that Sailors must
self-report to their commanding officer any civilian arrest or
criminal charge, is superseded by superior regulatory authority
and violates her right against self-incrimination. The
appellant’s second and third AOEs allege her convictions for
unauthorized absence and larceny are factually and legally
insufficient.
After careful consideration of the pleadings of the parties
and the record of trial, we conclude that the findings and
sentence are correct in law and fact and no error materially
prejudicial to the substantial rights of the appellant was
committed. Arts. 59(a) and 66(c), UCMJ.
Background
The appellant joined the U.S. Navy on 2 August 2006 and
shortly thereafter reported to her first assignment aboard USS
RONALD REAGAN (CVN 76). At the time the ship was home-ported at
San Diego, California. While assigned to REAGAN, the appellant
met KC and a few weeks later they married on 27 August 2007. KC
testified that he married the appellant because he loved her and
believed she loved him. However, KC was aware, based on the
appellant’s representations, that she would make more money if
they married. 3 KC testified that following their marriage, he
1
The convening authority expressly disapproved the remaining fine amount of
$7,120.00 and the 12 months of contingent confinement.
2
OPNAVINST 3120.32C (Ch. 7, 16 Jun 2011).
3
During all periods at issue in this case, the appellant was a Machinist’s
Mate Fireman (E-3) and a single E-3 assigned to REAGAN was not entitled to
receive Basic Allowance for Housing or Family Separation Allowance.
2
and the appellant shared a house in San Diego with another
couple. On 4 September 2007, the appellant updated her NAVPERS
1070/602 form (Page 2) and submitted her marriage certificate to
the Personnel Division on the ship. This transaction began the
appellant’s receipt of Basic Allowance for Housing (BAH) at the
dependent rate. It also enabled the appellant to receive Family
Separation Allowance (FSA) when the ship deployed. On this Page
2, the appellant listed the San Diego address she and KC shared
with the other couple.
In the following weeks, KC quickly realized that his
marriage to the appellant did not meet his expectations. He
testified that he and the appellant never consummated the
marriage and did not sleep in the same bed. Moreover, KC
testified that shortly after they were married the appellant
told him she wanted an open relationship and at this point KC
moved into a separate room at the residence. In early 2008, KC
came home from work and the roommates told him that the
appellant had left and would not be coming back. They also told
KC he needed to vacate the house by the end of the week. KC
moved out and within a few months returned to his hometown of
Victorville, CA. From 2008 through the time of trial, KC was
employed and supported himself financially. He testified that
he never obtained a military dependent’s identification card,
never used the military healthcare system or any services
offered to military dependents, never shared a joint bank
account with the appellant, and never received financial support
from the appellant. He testified that the only time he saw the
appellant after she moved out was when they went to a tax
preparer in early 2008 to file a joint 2007 tax return. KC
testified that although he tried several times to call the
appellant and left her voice mails, she did not answer or return
his calls. KC stated that he signed divorce papers in 2010,
however the appellant refused to sign the papers and at the time
of trial they were still legally married.
Over the next several years, the appellant updated her Page
2 three times and indicated she and KC resided at addresses in
Lakeside, CA, El Cajon, CA, and on Lake Murray Boulevard in San
Diego, CA. KC never resided at any of the addresses listed on
these updated Page 2s and the appellant never lived at or had a
valid lease for the Lake Murray Boulevard address.
In January 2012, REAGAN executed a home-port change from
San Diego, CA to Bremerton, WA. During this time the ship
underwent a records review to determine whether Sailors left
dependents in San Diego and thus qualified to continue to
3
receive the San Diego BAH rate as opposed to the Bremerton rate.
At this point, the appellant submitted a lease for the Lake
Murray Boulevard address to her command to show that she
qualified for the San Diego BAH rate. Her command became
suspicious because the lease did not have the appellant’s name
on it. The command then initiated an investigation into the
appellant’s receipt of BAH which eventually led to the larceny
and false official statement charges.
The basis for the lawful general order violation stems from
the appellant’s 4 February 2012 arrest in Kitsap County, WA for
driving under the influence of alcohol (DUI). Her command
became aware of her arrest for DUI in August of 2012 when one of
her supervisors was at the Kitsap County Courthouse with another
Sailor and saw the appellant’s name on the court docket for a
DUI hearing. The supervisor informed the chain of command of
the appellant’s arrest and pending court case.
The basis for the unauthorized absence allegation stems
from a period of emergency leave the appellant requested
following her sister’s death. After the appellant received a
Red Cross message that her sister had died, she submitted a
thirty-day leave request that was approved by the reactor duty
officer, and on 1 August 2012 the appellant left REAGAN to begin
her emergency leave. However, there was some confusion at the
command regarding the duty officer’s authority to approve that
length of leave period. The reactor duty officer then called
the appellant as she was on her way to the airport and told her
to return to the ship and fill out a new leave chit for a lesser
period, however the appellant continued to the airport and flew
to Las Vegas, NV. Record at 439-40. The appellant returned to
the ship on 4 September 2012. The end of the appellant’s
thirty-day emergency leave period was 1 September 2012, which
was not a workday. The appellant acknowledged receiving
multiple voice mail messages from her chain of command while she
was in Las Vegas and knew from these messages that her command
considered her in a UA status. The Government charged the
appellant with unauthorized absence from 8 August 2012 through 4
September 2012. The members found the appellant guilty, through
exceptions and substitutions, of unauthorized absence from 1-4
September 2012.
Additional facts necessary for the resolution of each AOE
are developed below.
4
Discussion
Reporting Requirements under OPNAVINST 3120.32C
The appellant’s first AOE raises the question of whether
changes to the U.S. Navy Regulations and the Navy’s Standard
Organization and Regulations Manual, OPNAVINST 3120.32C,
addressed constitutional and regulatory issues raised by this
court in United States v. Serianne, 68 M.J.580 (N.M.Ct.Crim.App.
2009), aff’d, 69 M.J. 8 (C.A.A.F. 2010). Our court, sitting en
banc, concluded an earlier OPNAVINST requiring an individual
self-report any alcohol related arrest violated the Self
Incrimination Clause of the Fifth Amendment. 4 Id. at 585. The
following instructional language was at issue in Serianne:
All personnel are responsible for their personal
decisions relating to drug and alcohol use . . . .
Members arrested for an alcohol-related offense under
civil authority, which if punished under the UCMJ
would result in punishment of confinement for 1 year
or more, or a punitive discharge or dismissal from the
Service (e.g., DUI/DWI), shall promptly notify their
[Commanding Officer]. Failure to do so may constitute
an offense punishable under Article 92, UCMJ.
Id. at 581.
We found the disclosures required by the regulation were
compelled, testimonial, and incriminating, and therefore the
regulation violated an accused’s Fifth Amendment rights. Id. at
581-84. Additionally, we rejected the Government’s assertion
that OPNAVINST 5350.4C provided a regulatory exception to the
Fifth Amendment. Id. at 585. The regulatory exception limits
self-incrimination protection when the Government requires
information for a legitimate administrative purpose. Id. at 584(quoting United States v. Swift, 53 M.J. 439, 453 (C.A.A.F.
2000)) (additional citations omitted). We determined that an
order concerning drunk driving, an activity “‘very widely
prohibited under both [military] and state law’”, id. (quoting
Marchetti v. United States, 390 U.S. 39, 44 (1968)) which
authorizes commanders to take punitive action against those who
fail to comply with it, was “decidedly punitive,” not merely
administrative, id.. Finally, we noted that OPNAVINST 5350.4C
conflicted with a superior order, U.S. Navy Regulations Article
4
The self-reporting requirement was mandated by OPNAVINST 5350.4C (Drug and
Alcohol Abuse Prevention and Control). This self-reporting requirement was
subsequently canceled.
5
1137, which required Sailors to report criminal offenses that
come under their observation, except when they themselves are
criminally involved in the offense. Id. 584-85; U.S. Navy
Regulations, Art. 1137 (1990).
The Court of Appeals for the Armed Forces (CAAF) affirmed
Serianne on the grounds that the order contained in OPNAVINST
5350.4C conflicted with Navy Regulation Article 1137.
Serianne, 69 M.J. at 11 (“The lower court's description of
Article 1137 as ‘superior competent authority’ is consistent
with Article 0103 of the United States Navy Regulations, which
states that the United States Navy Regulations serve as ‘the
principal regulatory document of the Department of the Navy,’
and specifically states that ‘[o]ther directives issued within
the Department of the Navy shall not conflict with, alter or
amend any provision of Navy Regulations.’”). The CAAF concluded
the subordinate OPNAV Instruction could not provide a legal
basis for holding the appellant criminally liable. Id. 5
After the CAAF's ruling, the Secretary of the Navy revised
the Navy Regulations in a Naval Message entitled “Change to U.S.
Navy Regulations in light of U.S. v. Serianne.” See ALNAV
049/10 dtd 21 Jul 2010. 6 The revised Article 1137 continued to
require persons in the Naval service to report all UCMJ offenses
they observe, except when they themselves are already criminally
involved in the enterprise. Id. It added a new requirement for
service members to report anytime they received a civilian
criminal conviction. Id. Additionally, the Secretary
authorized the Chief of Naval Operations (CNO) and Commandant of
the Marine Corps to “promulgate regulations or instructions that
require servicemembers to report civilian arrests . . . if those
regulations or instructions serve a regulatory or administrative
purpose.” Id.
Following the Secretary’s authorization, the CNO issued
NAVADMIN 373/11 on 08 December 2011. 7 This message, inter alia,
amended OPNAVINST 3120.32C to mandate that Sailors self-report
all civilian arrests or criminal charges. It states such
“[d]isclosure is required to monitor and maintain the personnel
readiness, welfare, safety, and deployability of the force.”
NAVADMIN 373/11, ¶ 4C. Under the revised instruction, Sailors
5
Having resolved the case on the basis of the regulations, CAAF intentionally
did not address the constitutional issue. 69 M.J. at 11.
6
ALNAV messages are directed to all Navy units and the Marine Corps.
7
NAVADMINs are Navy specific administrative messages.
6
must report the “date of arrest/criminal charges, the
arresting/charging authority, and the offense for which they
were arrested/charged[,]” but “[n]o person is under a duty to
disclose any of the underlying facts concerning the basis for
their arrest or criminal charges.” Id. Furthermore, it
authorized commanders to impose disciplinary action for Sailors
who fail to self-report an arrest or criminal charges. Id. at ¶
6B. Finally, the CNO in effect granted testimonial immunity for
such self-reports stating, “commanders shall not impose
disciplinary action for the underlying offense unless such
action is based solely on evidence derived independently of the
self-report.” Id. at ¶ 6A.
At trial, the defense challenged the constitutionality of
the self-reporting requirement arguing that, despite the
regulatory and instructional revisions, the self-reporting
requirement still compelled a testimonial and incriminating
statement, and therefore it violated the accused’s Fifth
Amendment right against self-incrimination. Appellate Exhibit
II. Additionally, the trial defense counsel argued the
regulatory exception to the Fifth Amendment developed in
California v. Byers, 402 U.S. 424 (1971), did not apply to the
revised OPNAVINST 3120.32C. AE II at 9. The military judge
denied the defense motion to dismiss finding that:
[P]aragraph 6 of NAVADMIN 373/11 imposes clear
regulatory restrictions on commanders, removing the
real danger of legal detriment. As such, the
compelled, testimonial act of providing the required
information pertaining to the civilian arrest/charge
is not incriminating.
AE XIX at 5 (footnote omitted).
Additionally, the military judge concluded:
These clear restrictions on the use of the
arrest/charge information distinguish the facts at bar
from Serianne and further serve to evince the order’s
legitimate administrative purpose by segregating the
required information from the criminal justice arena.
Id.In sum, the military judge found the use restriction
provision contained in NAVADMIN 373/11 made any required
disclosure not incriminating and the self-reporting
7
requirement from OPNAVINST 3120.32C, as amended by NAVADMIN
373/11, was promulgated for a legitimate administrative
purpose. We agree.
This court reviews questions of the constitutionality and
interpretation of instructions de novo. Serianne, 69 M.J. at 10
(citing United States v. Wright, 53 M.J. 476, 478 (C.A.A.F.
2000)). The Fifth Amendment to the U.S. Constitution guarantees
that one not be “compelled in any criminal case to be a witness
against [oneself].” Serianne, 68 M.J. at 581 (quoting U.S.
Constitution, Amendment V). Furthermore, the UCMJ asserts that
“no person subject to this chapter may compel any person to
incriminate himself or to answer any question the answer to
which may tend to incriminate him.” Art. 31(a), UCMJ.
To qualify for the Fifth Amendment privilege a
communication must be compelled, testimonial, and incriminating.
Serianne, 68 M.J. at 581. Paragraph 510.6 of OPNAVINST
3120.32C, as amended by NAVADMIN 373/11, clearly compels Sailors
to self-report any civilian arrest and/or criminal charge. For
a communication to be testimonial it must be one that
“‘explicitly or implicitly relate[s] a factual assertion or
disclose[s] information.’” Id. at 581-82 (quoting Doe v. United
States, 487 U.S. 201, 210 (1988)). Although the revised
instruction does not dictate a self-reporting method, “‘[t]here
are very few instances in which a verbal statement, either oral
or written, will not convey information or assert facts. The
vast majority of statements thus will be testimonial . . . .”
Serianne, 68 M.J. at 582 (quoting Doe, 487 U.S. at 213). We
find that the requirement of OPNAVINST 3120.32C, as modified by
NAVADMIN 373/11, for Sailors to disclose to their command the
“date of arrest/criminal charges, the arresting/charging
authority, and the offense for which they were arrested/charged”
to be testimonial, as well as compelled. NAVADMIN 373/11, ¶
4(C).
For a compelled, testimonial statement to be incriminating,
the detriment to the individual who made the statement must be
“‘real and appreciable’ and ‘not a danger of an imaginary and
unsubstantial character.’” Serianne, 68 M.J. at 582 (quoting
Brown v. Walker, 161 U.S. 591, 599 (1896)). Incriminating
statements are not only those that would support a conviction in
and of themselves, but also “‘those which would furnish a link
the chain of evidence needed to prosecute [an individual] for a
federal crime.’” Id. (quoting Hoffman v. United States, 341
U.S. 479 (1951) (footnote omitted). This case differs from
Serianne because the regulation at issue expressly prohibits
8
commanders from imposing disciplinary action based on the self-
report, whereas in Serianne we determined the relevant
regulation was “decidedly punitive” and placed great emphasis on
the role of commanders in disciplining service members involved
in alcohol related misconduct. Id. at 584.
The appellant argues the self-reporting requirement of the
revised OPNAVINST 3120.32C elicits incriminating information
because the use restriction contained in the revision is of no
effect or at most is “vague and qualified.” Appellant’s Brief
of 20 Nov 2013 at 15-16 and 27. The appellant maintains that
the provision in NAVADMIN 373/11 stating that “[n]o person
subject to the [UCMJ] may question a person self-reporting an
arrest/criminal charges . . . unless they first advise the
person of their rights under UCMJ Article 31(b)” contradicts the
use restriction provision, because it suggests information can
be obtained from and used against the individual self-reporting
if an Article 31(b) advisement is given. “The very existence of
this questioning authorization calls into question whether the
guidance actually offers immunity from prosecution.” Id. at 16.
Additionally, the appellant argues that even if there is some
level of immunity, it “is only offered to those who report
before the command finds out.” Id. at 16 and 27.
The appellant’s arguments are unpersuasive. We find
nothing ambiguous in the CNO’s directive prohibiting commanders
from imposing discipline for the underlying offense of a self-
reported civilian arrest or criminal charge, unless the
disciplinary action is based solely on evidence derived
independently of the self-report. While the imposition of
discipline in such a circumstance may routinely raise the
question of whether the evidence was obtained independent of the
self-report, this is not a unique legal concept. Similar
determinations must be made when the Government grants
“testimonial” or “use” immunity and then later moves to
prosecute the immunized witness. See Kastigar v. United States,
406 U.S. 441 (1972); United State v. Vela, 71 M.J. 283 (C.A.A.F.
2012); United State v. Allen, 59 M.J. 478 (C.A.A.F. 2004);
United State v. Mapes, 59 M.J. 60, (C.A.A.F. 2003); United State
v. Youngman, 48 M.J. 123, (C.A.A.F. 1998); United State v.
McGeeney, 44 M.J. 418 (C.A.A.F. 1996). Such a circumstance does
not run afoul of the Fifth Amendment’s Self Incrimination Clause
because the Self Incrimination Clause’s “sole concern is to
afford protection against being ‘forced to give testimony
leading to the infliction of ‘penalties affixed to ... criminal
acts.’ Immunity from the use of compelled testimony, as well as
evidence derived directly and indirectly therefrom affords this
9
protection.” Kastigar, 406 U.S. at 453 (internal citations
omitted).
The Article 31(b) rights advisement language in the
revision to OPNAVINST 3120.32C is clearly separate and distinct
from the use restriction provision in paragraph 6 of NAVADMIN
373/11. 8 Thus, we see no basis to conclude that such language
impacts the use restriction in any fashion. Similarly, when the
command discovers one of its Sailors has been arrested and/or
criminally charged prior to the Sailor self-reporting the arrest
or charge, the Government is not relieved of its responsibility
to show any evidence used when disciplining the Sailor for the
underlying offense was obtained independently of the self-
report.
As the military judge correctly determined, the use
restriction in NAVADMIN 373/11, paragraph 6A, removed any real
and appreciable danger of legal detriment for a self-reported
arrest or criminal charge. Thus, we conclude the compelled,
testimonial statement required by the regulation is not
incriminating. Reaching this conclusion alleviates our need to
determine if the revised instruction provides a regulatory
exception to the Fifth Amendment. However, the Secretary of the
Navy’s authorization to the CNO to promulgate regulations
requiring servicemembers to report civilian arrests or filing of
criminal charges is contingent on the regulation serving a
regulatory or administrative purpose. See ALNAV 049/10.
Therefore, we must examine the revised regulation to insure its
compliance with superior regulatory authority.
The stated purpose of OPNAVINST 3120.32C, paragraph 510.6,
is to “monitor and maintain the personnel readiness, welfare,
safety, and deployability of the force.” On its face the
revised OPNAVINST 3120.32C appears to be administrative and in
compliance with the Article 1137 of Navy Regulations. There is
an obvious and compelling need for commanders to be aware of
their Sailors’ pending civilian criminal cases due to potential
impacts on the Sailor’s deployability and in turn the effect on
command readiness. Moreover, pending criminal charges may have
an impact on a Sailor’s fitness to continue in or be assigned
certain duties and responsibilities. Finally, the limits placed
on taking disciplinary action for the underlying offense of a
8
We decline to speculate on the reason for including the rights advisement
language in the revised instruction. However, we do note it is preceded by
the following statement, “[d]isclosure of arrest/criminal charges is not an
admission of guilt and may not be used as such, nor is it intended to elicit
an admission from the person self-reporting.” NAVADMIN 373/11 ¶4(C).
10
self-reported criminal arrest or charge reinforces the
administrative nature of the regulation.
The appellant, however, argues the revised instruction is
punitive in effect under a seven-factor test set forth by the
Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-
70 (1963). The Court applied the factors to determine whether
an act of Congress was punitive or regulatory. The CAAF applied
the Mendoza-Martinez test to determine the nature of a
Department of Defense regulation in United States v. Fischer, 61
M.J. 415, 420 (C.A.A.F. 2005). 9 The Mendoza-Martinez test
includes the following factors: (1) whether the sanction
involves an affirmative disability or restraint; (2) whether it
has historically been regarded as punishment; (3) whether it
comes into play only on a finding of scienter; (4) whether its
operation promotes retribution and deterrence – the traditional
aims of punishment; (5) whether the behavior to which it applies
is already a crime; (6) whether an alternative purpose to which
it may rationally be connected is assignable for it; and (7)
whether it appears excessive in relation to the alternative
purpose assigned. Fischer, 61 M.J. at 420, (citing Mendoza-
Martinez, 372 U.S. at 168-69). Assuming arguendo that the
Mendoza-Martinez test applies in this circumstance, we disagree
with the appellant’s assertion that it casts the revised
instruction as punitive.
i. Affirmative Disability or Restraint
OPNAVINST 3120.32C imposes a duty on Sailors to self-report
any civilian arrest or pending charge. It does not create an
affirmative disability or restraint. In fact, it expressly
prohibits the imposition of disciplinary action based upon the
self-report. The appellant’s argument that a self-report may
lead to administrative separation or poor evaluations is
speculative and, in any event, such actions are not dictated by
the instruction at issue and therefore do not qualify as an
affirmative disability or restraint under this prong.
ii. Historic Perspective
Compulsory disclosure of a criminal arrest or charge is not
a traditional punishment, nor does the appellant so contend.
9
In Fischer the CAAF assumed without deciding that the Mendoza-Martinez
factors applied in reviewing alleged violations of Article 13, UCMJ. At
issue in Fischer was whether Department of Defense pay regulations that
terminated the accused’s pay while he served pretrial confinement following
his expiration of active service.
11
The appellant asserts however, that the loss of the opportunity
to serve the government has historically been regarded as
punishment for the purpose of this test. United States v.
Lovett, 328 U.S. 303, 316 (1946). Lovett differs significantly
from the case at bar. In Lovett, the Supreme Court considered a
statute that singled out federal employees for “subversive
activities” and prohibited such employees from ever again being
compensated for government employment. The Court found this
constituted severe punishment. Lovett, 328 U.S. at 314-16.
As discussed supra, there is no evidence in the record to
support the proposition that administrative separation
inevitably flows from a self-report required by the instruction.
Moreover, there is no evidence in the record and we will not
speculate, that an individual administratively separated from
the U.S. Navy would be barred from future federal service.
iii. Scienter
In the context of a criminal statute, scienter exists
“[w]here the lawmakers have incorporated into the act a word or
words descriptive of the crime which imply the necessity of ‘a
mind at fault before there can be a crime,’ criminal intent
becomes an essential fact in establishing the guilt of a person
accused of its violation.” United States v. Thomas 65 M.J. 132,
134 (C.A.A.F. 2007) (quoing Masters v. United States, 42 App.
D.C. 350, 356 (D.C. Cir. 1914)). Consciousness of guilt does
not trigger the self-reporting requirement, so scienter is a
non-factor under the regulation. Fisher, 61 M.J. at 420-21.
iv. Retribution and Deterrence
The instruction is not aimed at retribution or deterrence
for the underlying criminal activity of individuals who self-
report an arrest or charge, but rather to “monitor and maintain
the personnel readiness, welfare, safety, and deployability of
the force.” OPNAVINST 3120.32C, ¶ 510.6. Commanders are
expressly prohibited from pursuing disciplinary action based
solely on information derived from a self-report. NAVADMIN
373/11.
v. Application to Criminal Behavior
The fifth factor is whether OPNAVINST 3120.32C is invoked
as a result of behavior that is already a crime. Fischer, 61
M.J. at 421 (citing Mendoza-Martinez, 372 U.S. at 168). This
factor does weigh in favor of the appellant as the instruction
12
to self-report is triggered if a servicemember is arrested or
charged with a crime.
vi. Alternative Purpose
The purpose of the instruction is to “monitor and maintain
the personnel readiness, welfare, safety and deployability of
the force.” OPNAVINST 3120.32C, ¶ 510.6. Personnel readiness
and the welfare, safety and deployability of the force are
clearly integral to the operation of the U.S. Navy. The
appellant’s contention that her command’s readiness was not
impacted by her failure to self-report her civilian arrest for
DUI does not invalidate the instruction. In the appellant’s
specific case, she was attached to REAGAN while the ship
executed a homeport change. One can certainly envision where
the appellant’s pending DUI offense could have directly impacted
her personal readiness and/or her deployability.
vii. Excessiveness
The final factor is whether OPNAVINST 3120.32C is excessive
in relation to the alternative purpose assigned to it. Fischer,
61 M.J. at 421 (citing Mendoza-Martinez, 372 U.S. at 169).
OPNAVINST 3120.32C does not require the individual to divulge
any of the underlying facts associated with the arrest or
criminal charge. We find that the information required to be
provided in as self-report is not excessive for the
instruction’s stated purpose. In fact, we find that the self-
reporting requirement is a minimally restrictive means to meet
the Navy’s goal, while protecting a service member’s statutory
and constitutional rights.
In sum, the majority of the Mendoza-Martinez factors
clearly weigh in favor of finding the self-reporting requirement
of the revised OPNAVINST 3120.32C regulatory in nature. Based
on this analysis, we find the revised OPNAVINST 3120.32C was
promulgated for a regulatory or administrative purpose and thus
complies with U.S. Navy Regulations Article 1137 as amended by
ALNAV 049/10.
Factual and Legal Sufficiency
In her second and third AOEs, the appellant argues that the
evidence is legally and factually insufficient to convict her of
unauthorized absence (UA) and larceny. The test for legal
sufficiency is whether any rational trier of fact could have
found that the evidence met the essential elements of the
13
charged offenses, viewing the evidence in the light most
favorable to the government. United States v. Turner, 25 M.J.
324, 324 (C.M.A. 1987). The test for factual sufficiency is
whether we ourselves are convinced of the appellant’s guilt
beyond a reasonable doubt, allowing for the fact that we did not
personally observe the witnesses. Id. at 325.
Proof beyond a reasonable doubt does not mean that the
evidence must be free of conflict. United States v. Goode, 54
M.J. 836, 841 (N.M.Ct.Crim.App. 2001). The factfinders may
believe one part of a witness’ testimony and disbelieve another.
Id. When weighing the credibility of a witness, this court,
like a fact-finder at trial, examines whether discrepancies in
witness testimony resulted from an innocent mistake such as a
lapse of memory or a deliberate lie. Id. at 844.
i. Unauthorized Absence
The appellant contends that her conviction for UA is
legally and factually insufficient because she was acquitted of
an underlying period of alleged UA during which she was granted
leave. The appellant was charged with UA from 8 August until 4
September 2012, but was found guilty by exceptions and
substitutions of the lesser UA period of 1-4 September 2012.
The appellant contends that September 1st, 2nd and 3rd were not
workdays and therefore, it negates the element that a “certain
authority appointed a certain time and place of duty for
[Fireman Castillo] during those days over the Labor Day
weekend.” Appellant Brief’s at 29-30. We disagree.
The appellant testified that her requested leave ran
through 31 August 2012, and that no one from her command granted
her authority to be absent from 1 September until she returned
to the ship on 4 September. Record at 561. Additionally, the
appellant was aware REAGAN’s quarterdeck was manned twenty-four
hours a day. Id. at 562. The appellant acknowledged receiving
multiple voice mail messages in August from members of her chain
of command indicating that she was considered UA and urging her
to contact them to straighten out the situation. Id. at 563-
564. The appellant chose not to communicate with her chain of
command to resolve her situation and elected to return to her
command on 4 September 2012. Id. at 565. We disagree with the
appellant’s assertion that her UA conviction for 1-4 September
2012 was dependent on a finding that she was previously UA from
8 August through 1 September 2012. After reviewing the record,
we find that a rational trier of fact could have found that the
appellant had a duty to report to her command following the
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expiration of her emergency leave and therefore the essential
elements of unauthorized absence were met. We are ourselves
convinced beyond a reasonable doubt as to the appellant’s guilt.
ii. Larceny
At trial the Government provided alternate theories of
proof for the larceny charge -- false pretense and wrongful
withholding. The appellant asserts the Government’s theory of
larceny by false pretense is legally deficient, because in its
response to a trial defense motion to dismiss the charge, the
Government stated the false pretense “arose from her [the
appellant’s] silence when she clearly knew that disbursing
officials were continuing to pay BAH with dependents and FSA,
which she knew she was not entitled to receive.” 10 AE XXXV at 7.
Under a false pretense theory of larceny, the pretense must be
made through an affirmative step.
With respect to obtaining property by false
pretense, the false pretense may be made by
means of any act, word, symbol or token.
The pretense must be in fact false when made
and when the property was obtained, and it
must be knowingly false in the sense that it
is made without a belief in its truth. A
false pretense is a false representation of
past or existing fact.
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) Part IV, ¶ 46(e).
Although the Government indicated in pretrial motions that the
false pretense was asserted through the accused’s silence, it
did not propose such a theory at trial. The trial counsel
detailed several affirmative steps the appellant took, such as
submitting false Page 2s and lying to command members about her
husband’s location, to continue to receive BAH and FSA at the
San Diego rate. In discussing proposed instructions, the
military judge noted that under a false pretense theory, the
taking must include an affirmative act. Record at 585. We find
there was sufficient evidence to support a theory of larceny by
false pretense and the military judge properly instructed the
members on the larceny theories raised by the evidence. See id.at 593-96 and AE CI.
10
The appellant does not challenge the Government’s wrongful withholding
theory for larceny.
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To receive BAH at the dependent rate one must have a
qualifying dependent and financially support that dependent.
United States v. Bulger, 41 M.J. 194, 196 (C.M.A. 1994). During
the charged time period, February 2009 through July 2012, the
appellant received more than $84,000.00 in allowances based upon
her marriage to KC. While the record is clear that KC and the
appellant remained married during the relevant time, the issue
in this case is one of support. The appellant contended at
trial that she financially supported KC by providing him a
portion of their 2007 tax refund and several thousand dollars
during times they met following their physical separation in
early 2008. Record at 516, 533-34. However, contrary to the
appellant’s assertions, KC maintained that he never received any
financial support from the appellant and, in fact, had not seen
the appellant for approximately five years before he testified
at her court-martial. Id. at 221. Moreover, in February 2009,
the appellant moved in with and began a romantic relationship in
with another person who testified that the appellant indicated
she was divorced. Id. at 250-51. The appellant affirmatively
and knowingly provided false addresses for her husband that
enabled her to maintain her BAH entitlement and when the ship
executed a homeport change to Bremerton, WA, she provided a
false lease in order to continue her entitlements at the San
Diego rate. Id. at 552-53, 555-57. The record contains
sufficient evidence for a rational fact finder to find the
essential elements of larceny and we are convinced beyond a
reasonable doubt as to the appellant’s guilt. Therefore we find
the appellant’s conviction for larceny both legally and
factually sufficient.
Conclusion
The findings and the sentence as approved by the convening
authority are affirmed.
Senior Judge MITCHELL and Judge JAMISON concur.
For the Court
R.H. TROIDL
Clerk of Court
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