Courts of Criminal Appeals

Air Force

United States v. Ching

Among the Appellant's charges is one of violating an MPO that "restrict[ed him] from initiating electronic contact with JC, and [that he] did, on divers occasions, willfully disobey the same."

The MPO violation charge is neither uncommon nor the means by which the accused is alleged to have violated the order.

AFCCA gives a useful discussion of what "initiating" means in regard to the order in this case, that may be useful in other cases.

The Government provided two theories as to how Appellant disobeyed his superior commissioned officer, Maj AG, both of which are based on the MPOs Maj AG issued Appellant to “restrain[ ] from initiating any contact or communication with [JC] either directly or through a third party.” The first theory alleges Appellant disobeyed this order by posting on his Twitter account grievances he had about JC. The second theory alleges Appellant disobeyed this order by searching for JC on the iPhone “Find My” app. Neither of these actions by Appellant meet the definition of “initiating contact or communication.” The charged offense alleges Appellant was restricted from “initiating electronic contact” or “words to that effect,” which is slightly different from the specific wording of the MPO. The difference in wording is of no importance to our analysis and conclusion on this issue. The crux of the issue is whether or not Appellant “initiated contact” with JC and thus, we must determine the meaning of that term.

Several points then to consider in what appears to be a fact (and lack of evidence) specific case.

With respect to the tweets, JC was never asked how she became aware of them and testified she “happened to come across messages” from Appellant on Twitter. While she might have been the subject of words he posted to the public, they were not in fact messages sent to her.

JC testified that she saw the tweets, but the Government failed to prove this was because Appellant “willfully” initiated contact with her. While JC testified the tweets were “directed at her,” there is no evidence this is so. She was the subject of the tweets, but there was no evidence Appellant sent them to her, attempted to induce another to send to her, or put them in a format that she would directly receive.

​With respect to the allegation Appellant used the “Find My” app to locate JC, Appellant argues there was no testimony elicited at trial that he had an iPhone at the time she received the notification from Apple informing her someone was trying to locate JC and there was no testimony or evidence that proved the email address connected to the notice did in fact belong to Appellant. This is true; however, even assuming Appellant attempted to discover JC’s whereabouts using the “Find My” app and the app sent an automatic push-notification to JC informing her someone was trying to find her, this was not a request by Appellant reaching out asking JC to allow him to follow her, nor does it demonstrate Appellant willfully sent a “communication” or “significant signal” to JC. There is no evidence his intention was to communicate with JC. Simply put, this app is not a communication app and Appellant’s attempt to locate JC’s whereabouts, without more, does not meet the definition of “initiating contact.”

Army

United States v. Gilkey

In this Article 62 appeal, ACCA finds the military judge did not err in suppressing evidence obtained from the Appellant's smartphone. The suppressed evidence had led to an additional charge.

The military judge determined that special agents from Army Criminal Investigation Division (CID) should have advised appellee of his Article 31, UCMJ, rights after they lawfully seized appellee's phone but before they subsequently asked appellee if he needed the phone number for his defense attorney, resulting in appellee unlocking his cell phone and giving access to its entire contents. Consequently, the military judge suppressed evidence found on the cell phone and the government appealed the military judge's ruling to this court.

In his written ruling, the military judge concluded that SA was required to administer Article 31, IICMJ, rights warnings before effectively asking appellee to unlock his phone which was an act reasonably calculated to elicit an incriminating response. That is, a response which admitted appellee's exercise of ownership or control over the device and provided unfettered access to the information on Phone, furnishing a link in the chain of evidence necessary to prosecute appellee, as it did in United States v. Mitchell, 76 M.J. 413 (C.A.A.F. 2017), cited by the military judge in his ruling.

ACCA finds that the 'yes' answer to three questions warranted suppression.

1. Was CID required to give Article 31 warnings? -Yes.
2. Were the questions asked an interrogation? - Yes.
3. Were the Appellant's responses "testimonial or communicative?" - Yes.

In providing its answers ACCA applied a totality of the circumstances test. It notes that Mil. R. Evid. 305(b)(2) was "broadly fashioned to thwart attempts to circumvent warning requirements through subtle conversations." Citing  United States v. Traum, 60 M.J. 226, 229 (C.A.A.F. 2004). However, "interrogation involves more than merely putting questions to an individual." Citing United States v. Robinson, 77 M.J. 303, 306 (C.A.A.F. 2018) (holding a request for consent was not an interrogation).

Overall, an excellent discussion, worth the read.

United States v. Santos​

Santos is a "oops" case.

Appellant assaulted his romantic partner twice and, when questioned by law enforcement special agents (SAs), appellant made multiple false official statements. As to one of the false official statements, the SA listed in the charged specification was not the same SA referenced in appellant's stipulation of fact or discussed during his court-martial. That false official statement specification (Specification 3 of Charge IV) will be dismissed in our decretal paragraph.

United States v. Morales II​

Moral--es (sic), argued on appeal that he was not on fair notice that "taking pictures of fully clothed women outside a DoD elementary school" was an offense under Article 134, UCMJ.

There were over 100 photos focussed on the ladies' clothed "buttocks." They found that disturbing and caused them to fear for their safety.

The court "found no federal, state, or military law that prohibits taking pictures of clothed people in public without their knowledge. Nor has the government produced any evidence of military custom and usage or military regulation that would put appellant on notice this type of conduct is criminal."

Appellant's conduct of standing in an on-post elementary school student pick-up area, surreptitiously taking photos of women's buttocks, and storing a hundred of these images on his phone is certainly disturbing behavior, but was he on fair notice it was criminally sanctionable? "The test for constitutional notice that conduct is subject to criminal sanction is one of law. It does not turn on whether we approve or disapprove of the conduct in question." Rocha, 84 M.J. at 355 (internal citation omitted). The creepiness of appellant's conduct is abundantly clear, however, observing this through a judicial lens, the criminality of his conduct is not.

United States v. Penaloza​

If you have done a To-Catch-A-Predator type case (a sting operation), you know that the trickster will ask the subject to bring a toy or something similar to the meeting. To investigators or prosecutors, the gift is evidence of intent.

The Hawaii CID offices decided to set up a different type of sting to combat human trafficking.

In December 2022, Hawaii Criminal Investigation Division [CID] Special Agent [SA] created a profile (hereinafter "Kylie") on "Bumble," an adult dating application, for an undercover online operation focused on human trafficking. "Kylie" had a photo of SAM, listed her age as "18," her location as Schofield Barracks, her interests as "Making Money" and "The Game," and indicated she was seeking "something casual." On 12 December 2022, SA found appellant's Bumble profile, where he described himself as "Government Property" and located on Schofield Barracks. SA P"swiped right"2 and initiated contact with appellant through the application.

Appellant then asked her "[w]hat kinda fun you looking for on here[?]," to which "Kylie" responded "[t]he exciting kind" with a devil emoji. Shortly thereafter, "Kylie" requested the conversation switch from Bumble to "Snapchat," an instant messaging application.t

On Snapchat, appellant asked "when we linking up for some fun[?]" to which "Kylie" replied "I'm not free though. Ru ok w $50 for BJ or like $200 for normal sex[.]" Prior to responding, appellant requested a video in order to "[1]et me see you're real[.]" Appellant then asked to "link" and what brought "Kylie" to Schofield Barracks. She responded "Nahh haha not married waay [sic] to young for that[; m]y mom kicked me out and I just got here to live with my aunt[.]" A few texts later and 27 minutes into their conversation, "Kylie" revealed she was "[a]lmost 17" years-old.

As the text conversation continued, "Kylie" prompted "[y]ou want to have sex or bj?" and appellant answered "[s]ex," and he would "pay you cash[.]" "Kylie" continued "Ok u cool w $200? Do u have cash on u?" to which appellant responded yes, and when pressed for proof, stated he would go to the automated teller machine [ATM]. Appellant later sent a photograph representing a bank account balance.

Over the next five hours, appellant asked to meet with "Kylie" multiple times. During their conversation, appellant also told "Kylie" he had never paid for sex and made a number of attempts to confirm "Kylie's" identity and age, which "Kylie" ignored. The conversation ended with "Kylie" suggesting the two "hang out 4 lunch tomorrow."

The next morning, "Kylie" initiated contact with appellant by sending a message, "well good morning 2 u" with an image3 of her wearing a bathrobe captioned with "Want to come cuddle[?]." Appellant responded to her offer, to which she asked "When r u ready? Did u grab the cash yesterday?" Appellant responded "Yes[.]"

On his way to meet "Kylie" at Watts Field, an athletic field on Schofield Barracks, appellant called "Kylie." When SA = answered, appellant said words to the effect of, "Oh, you're actually real. I didn't think you were real until now." Shortly before arriving at the athletic field, he texted "I think this might be a bad idea[.]"

When appellant arrived at Watts Field, law enforcement quickly arrested him. A search of appellant and his vehicle did not reveal any cash.

ACCA found the prosecution failed to prove specific intent to commit a "commercial sex act" under 18 U.S.C. 1591(a). There being no possibility of a commercial sex act under the facts, the next question is on of the alleged "victims" age.

"Kylie" initially presented she was "18" on her Bumble profile. Later, after initiating flirtatious conversation with appellant, and after introducing sex, "Kylie" informed appellant she was "almost 17," implying that she was sixteen years-old --above the age of consent under both Hawaii law and the UCM.I. Appellant was legally permitted to have consensual sex with "Kylie," and his actions were only criminal if he intended a commercial transaction for sex.

In this MJA trial, the court concludes that because Penazola showed up to the meet without the necessary cash, there is no factually sufficient evidence of a "substantial step" to complete the commercial sex acts alleged ("travel alone does not constitute a substantial step" unless "accompanied by evidence of a firm intent to complete the offense"), and the alleged victim was 16 or older, so "no rational trier of fact could have found the elements proven beyond reasonable doubt." Findings and sentence set aside and dismissed.

United States v. Malone, __ M.J. ___ (Army Ct. Crim. App. 2025) (en banc)​

On one hand, I am tempted to commend the majority's effort to synthesize what has become a complex web of multiplicity jurisprudence; they have obviously put in significant work on that topic. But, as intriguing as their analysis might be, I am more deeply convinced appellant does not deserve it. He affirmatively waived the issue.

J. Penland, joined by J. Arguelles dissenting. J. Arguelles also wrote a separate dissent that J. Penland joined. They would find waiver of the unreasonable multiplication issue, thus no need to go on to discuss the issue and grant (effectively Pyrrhic) relief. In this case it would seem they have the right of it.

• Appellant accused of three specs of DV assault.
• Appellant agreed to plead guilty to each.
• When entering pleas, the DC said "no motions."
• During the Care inquiry on two of the three specifications, the military judge asked the Appellant, "So, this was all part of the same event that happened in Spec 1?" and "was this all part of the same transaction that you've been talking about to me about?" To which Appellant said yes each time.

In this case, the record -- to include the pretrial proceedings, the providence inquiry, the plea agreement, and stipulation of fact -- fails to show appellant affirmatively waived his claim of multiplicity. Turning first to the plea agreement, the terms made no reference to multiplicity or acknowledgement of whether the specifications were multiplicious. While appellant agreed to concurrent sentences for each specification, this alone is not sufficient for this court to find waiver of appellant's constitutional right against multiplicious convictions. Concurrent sentencing is a remedy for unreasonable multiplication of charges, which has sometimes been conflated with multiplicity but is a separate doctrine, not grounded in the Constitution but is rather a presidential policy prohibiting prosecutorial
overreaching. While a judge may order concurrent sentencing for charges that are unreasonably multiplied, in contrast, the remedy for multiplicity is "dismissal of the multiplied offense." Thus, even with a term mandating concurrent sentencing, appellant would still stand convicted of the multiplicious offenses, contrary to the intent of the Double Jeopardy Clause.

• The PTA had no "waive all waivable motions" language. A motion for unreasonable multiplication would not be frivolous on the facts of this case and was not precluded by the PTA.
• Because there was no waiver clause in the PTA, the MJ did not address the waiver of any pretrial motions.
  • That the waiver clause is missing is highly unusual and the drafting error seems to be the root cause of the problem.
  • There is an inference from the court that it would be wise of the MJ to always address the accused about motions during the Care inquiry.
  • In deciding the waiver issue ACCA found "inadequate the defense counsel's pro forma statement, following the military judge's request for appellant's plea, that "defense has no motions." This, too, fails to demonstrate waiver of appellant's multiplicity claim. Arguably, this language does not sound that different from a defense counsel stating "no objection" to proposed panel instructions which our superior court has held constituted waiver. See United States v. Rich, 79 M.J. 472, 475-76 (C.A.A.F. 2020)." Compare United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009).

The colloquy also revealed all three domestic violence specifications occurred on the same night and in the same general area of the home. Appellant stated he first struck the victim in the master bedroom. When asked where he was in the master bedroom when he first hit her, appellant stated, "It was transitioning from the master bedroom into the master bathroom; right in that area." There is no further discussion during the providence inquiry or in the stipulation of fact of the assaults occurring anywhere else. Also, the stipulation of fact refers to the entire incident simply as "the assault."

The military judge accepted appellant's plea to all three domestic violence offenses, as well as the other offenses to which appellant pleaded guilty. Consistent with the terms of the plea agreement, the military judge sentenced appellant to twenty months of confinement for Specification 1, twenty-six months of confinement for Specification 3, and thirty months of confinement for Specification. The military judge ordered all sentences to run concurrently

Navy-Marine Corps

United States v. Trickett

​Appellant was initially charged with aggravated sexual contact for touching the breast of her enlisted subordinate, by using unlawful force. At trial, FC1 S.M. testified that Appellant touched her “upper chest” rather than her breast. The military judge sua sponte, entered a finding of not guilty to the charge of aggravated sexual contact because “upper chest” is not an enumerated body part in the statute. Over Appellant’s objection, the military judge then instructed the members on the offense of assault consummated by a battery for touching FC1 S.M.’s “upper chest.” Here, within the second assignment of error, Appellant argues that the change from “breast” to “upper chest” constituted a fatal variance. We agree.

The convictions of 133 and fraternization and the sentence as adjudged are affirmed. This case presents another situation where an Article 128 may not automatically be an LIO of a 12o.