Courts of Criminal Appeals

Air Force

In Lake, "A panel of officer members convicted Appellant of 14 specifications of fraudulent use of a credit card, debit card, or other access device, and two specifications of larceny"--the proceeds of which amounted to over $16K from the Navy Exchange.

The primary issue is the admissibility of evidence of a "layered" conspiracy offered under Mil. R. Evid. 404(b). The facts are interesting, to say the least. 

The scheme began in May 2019, after Appellant’s boyfriend AA and his friend CH put Appellant in contact with AP, a former military member, who they said could help Appellant make money by using her military status to purchase gift cards and electronics for AP at the NEX. The evidence presented at trial showed Appellant received fraudulent prepaid debit cards from AP that contained stolen credit card account information on the magnetic strip, but did not contain a security chip.

Appellant used these cards at the NEX multiple times before the credit card companies flagged the cards for fraud and denied transactions. The evidence showed that Appellant typically went to multiple different registers, making a few transactions at each register on the same day.

Appellant subsequently provided the gift cards and merchandise to AP after she purchased the items. In exchange for her efforts, AP paid Appellant with gift cards or with a portion of the sale proceeds if the merchandise was later sold. On the advice of AP, Appellant then took the gift cards to various grocery stores in the area and used the gift cards to purchase money orders. Documentary evidence admitted at trial showed Appellant typically purchased $500.00 money orders with $500.00 gift cards, and that most of the money orders were made payable to Appellant and deposited in her personal bank account. Other money orders were made out to AP or AA.

The effort to track down the Appellant are also interesting in their complexity.

​A few days after the transactions, the credit card account holders noticed NEX purchases on their statements that they did not authorize and reported the unauthorized use to their credit card companies. In response, representatives from the various credit card companies notified the NEX sales audit team of the fraudulent purchases who in-turn notified Mr. BB, the NEX loss prevention (LP) officer. As a result, Mr. BB opened a formal investigation and testified about the results of his investigation. Mr. BB’s investigation revealed that Appellant mainly bought gift cards and electronics at the NEX with the debit cards that contained stolen credit card information. The Government presented evidence that Appellant specifically purchased, inter alia, approximately 22 gift cards, two laptop computers, a tablet computer, and a computer video game console.

​Mr. BB testified at Appellant’s trial that the NEX was liable for any fraudulent charges an individual disputed on their credit card, not the credit card company, because the NEX did not have credit card chip readers installed. Mr. BB testified that he used LP software to track all of the suspected fraudulent transactions made at the NEX. He explained the software provided him with a transaction snapshot for each suspected fraudulent transaction that showed the NEX register where the items were purchased, the cost of each item, and the credit card account numbers associated with the purchases. He also stated that he used video surveillance footage from the NEX registers to connect Appellant to the purchases. Finally, Mr. BB stated that he used a third computer system to determine where gift cards purchased at the NEX were eventually spent. The video and documentary evidence collected by Mr. BB was admitted at trial.

The military judge followed the Reynolds test to determine admissibility. On the third prong, the military judge concluded that a limiting instruction could ameliorate any residual concerns about any prejudicial effect of the testimony. (The defense was mistake, and on appeal, the factual sufficiency issue was primarily a lack of evidence of intent to defraud.)

If you are convinced by a preponderance of the evidence that a conspiracy to commit larceny existed, you may consider evidence that [Appellant] may have engaged in a conspiracy with [AA], [AP], and [CH] for the limited purpose of its tendency, if any to: (1) Prove a plan or design of [Appellant] to commit larceny; (2) Prove knowledge on the part of [Appellant] that she used an access device, that is a [bank] account, without the authorization of a person whose authorization was required for such use; (3) Prove that [Appellant] intended to defraud the Navy Exchange Services Command through false pretense; (4) Show [Appellant]’s awareness of her guilt of the offenses charged; (5) Determine whether [Appellant] had a motive to commit the offenses; and; (6) Rebut the contention of [Appellant] that her participation in the offenses charged was the result of ignorance or mistake. You may not consider this evidence for any other purpose, and you may not conclude from this evidence that the accused is a bad person or has general criminal tendencies and that she therefore committed the offenses charged. A “preponderance of the evidence” means, the allegation is more likely true than not true.

Coast Guard

In Shafran, the issues were 

I. There is legally and factually insufficient evidence supporting Appellant’s conviction for abusive sexual contact;
II. The Article 134 specification (providing alcohol to a person under the age of 21) is fatally defective because it does not allege a crime or words of criminality;
III. The military judge erred by instructing the members that Appellant was charged with providing alcohol to a minor when the relevant charge neither alleged Ms. E.F. was a minor nor cited any standard under which Ms. E.F. could be considered a minor;
IV. There is legally and factually insufficient evidence supporting Appellant’s conviction for providing alcohol to a person under 21 years of age;
V. Ms. E.F.’s unsworn statement discussing the impact of conduct for which Appellant was acquitted violated Rule for Courts-Martial (R.C.M.) 1001(c);
VI. The convening authority erred by failing to provide reasons for his denial of Appellant’s deferment request;
VII. Dr. A.H. exceeded the scope of his approved expertise by providing improper and speculative psychological interpretation of Ms. E.F.’s conduct and gave the equivalent of “human lie detector” testimony; and
VIII. Appellant was deprived of his right to a unanimous verdict.

The Court specified: (1) Whether the Article 134 specification is fatally defective because it omitted a required mens rea; and (2) Whether the record contains notice of a mens rea of at least recklessness that also suffices as notice of criminality.

As well as charging Appellant with sexual assault and abusive sexual contact under Article 120, UCMJ, the Government charged an unenumerated offense under Article 134, UCMJ, for providing alcohol to a person under the age of 21. The original specification alleged that Appellant knew Ms. E.F. was under the age of 21. However, facing a pretrial Defense motion for the military judge to instruct accordingly, trial counsel instead, over objection, struck the knowledge language from the specification, without substitution, and successfully argued that the offense required only recklessness.
. . . 
This raises a question we have not yet had occasion to consider: As amended, does R.C.M. 905 exempt claims of failure to state an offense from its deadlines for when claims must be raised and the consequence of forfeiture when these deadlines are not met?
. . .
​We hold that the revised R.C.M. 905 exempts claims of failure to state an offense from the consequence of forfeiture if not raised during trial. Accordingly, we review claims of failure to state an offense, whether raised at trial or not, de novo.

Navy-Marine Corps

In Watlington, the issues included,

(2) trial counsel was disqualified because he was an accuser;

(3) Director, Naval Reactors engaged in unlawful command influence [UCI] when he forwarded the charges to a subordinate commander and said he would fund the trial;

(4) trial counsel committed prosecutorial misconduct;

(5) the military judge abused her discretion by denying Appellant’s requested instruction on the issue of culpable negligence;

​(6) the military judge abused her discretion by allowing the victim’s brother to make an unsworn victim impact statement;

Gosh, what's that song, Faded Memories? It has been decades since the "Hey PO, sign here please," issue has arisen, and the senior who sends a case to a junior for disposition issue has arisen because of language in the forwarding letter.

​Appellant asserts that trial counsel was disqualified from prosecuting this case under R.C.M. 502(d)(3). He argues that, since Petty Officer Foxtrot did not review the evidence again before signing the second and third charge sheets, he must have signed them simply because trial counsel directed him to. 

Again, this is the operative word that distinguishes the issue from its historical antecedents.

Appellant argues that the military judge “found as fact that Naval Reactors forwarded the case to CNRMA and ‘agreed to fund any court-martial.’” He then cites this as some evidence of UCI, claiming it was an indication to CNRMA of what Naval Reactors expected the former to do.