Navy-Marine Corps Court of Criminal Appeals

United States v. Williams 

United States v. Flores resolves how the CCAs are to assess segmented punishments and then the total punishment. Williams says the CCA doesn't have to explain how it did that because "Our superior Court’s precedents do not require this Court to explain its reasoning when assessing the reasonableness of a sentence" citing United States v. Winckelmann, 73 M.J. 11, 16 (C.A.A.F. 2013) (“The Court of Criminal Appeals did not detail its analysis in this case; nor was it obligated to do so.”).

United States v. Colletti

The appellant challenged his conviction for wire fraud in violation of 18 U.S.C. § 1343 as legally and factually sufficient. NMCCA says no, and in the process takes issue with how AFCCA decided United States v. Martinez, ​No. ACM 39973, 2022 CCA LEXIS 212 (A.F. Ct. Crim. App. Apr. 6, 2022) aff’d on other grounds, 83 M.J. 439 (C.A.A.F. 2023).

The AFCCA began its analysis in Martinez by noting that neither party could cite precedent for charging the conduct at issue as wire fraud, and that the case raised an issue of first impression. Given that the wire fraud statute was enacted back in 1952, the absence of any precedent should have alerted the AFCCA—and subsequently the Government in this case—that it was “proceeding at flank speed…off course in thick fog, with no one on the bridge, helm or engine order telegraph.” As recently as last term, the Supreme Court again cautioned lower courts against embracing “novel” interpretations of the federal wire fraud statute. See, e.g., Percoco v. United States, 143 S. Ct. 1130, 1136 (2023), the AFCCA began its analysis by correctly holding that the federal wire fraud statute is “limited in scope to the protection of property rights[.]” But are digital images [alone] property for purposes of that statute? The AFCCA thought so.

AFCCA "adopted the holding of the Second Circuit “that a defining feature of most property is the right to control the asset.” And the victim in Martinez “suffered a loss of control of her private nude photos.”

NMCCA points out that "Martinez was barely a year old when the Supreme Court issued its decision in Ciminelli v. United States, ​143 S. Ct. 1121 (2023). 

In Ciminelli, the Court overruled this line of precedent and held that the right-to-control theory “cannot be squared with the text of the federal fraud statutes, which are ‘limited in scope to the protection of property rights.’”
. . . 
For its part, upon being haled before the Supreme Court in Ciminelli, the Government immediately beat a hasty retreat and abandoned the right-to-control theory. Despite relying on the right-to-control theory for decades, the Government conceded that if “the right to make informed decisions about the disposition of one’s assets, without more, were treated as the sort of ‘property’ giving rise to wire fraud, it would risk expanding the federal fraud statutes beyond property fraud as defined at common law and as Congress would have understood it.” “Thus, even the Government now agrees that the Second Circuit’s right-to-control theory is unmoored from the federal fraud statutes’ text.”
. . .
But the Government makes no such concession here. Despite the repeated references in the record to Martinez, and Martinez’s express reliance on Second Circuit precedent like Percoco that has since been reversed, the Government insists Appellant “was not prosecuted under a ‘right-to-control’ theory.” No. Appellant was prosecuted, according to the Government, under an “exclusive use” theory, which the Government maintains is a “traditionally recognized property right.” Under this newly-minted, traditional property right, the victims in this case lost “the exclusive use over their intangible property—the sexually explicit depictions of their bodies in digital photographs.” Put another way, they lost the right to control the use of their digital images. Needless to say, that is “slicing the baloney mighty thin.”

The Government, having shifted tack, NMCCA fires a broadside to their argument and brings down the mainmast, rigging and all. The court seems to be saying that a lie by itself is unanchored from the intent and meaning of the statute, that there must be something else to moor the facts to the ship, along the lines of having 

"​schemed to deprive the intended victims of the fraud, the girls, the talent agency, and the photographer of property and money."
“schemed to defraud the models, their families, the photographer, and the modeling agency of various services and property of some value.”
​"actors expecting payment for an audition or performance."
"​Catfishing for profit, as the phrase suggests, describes catfishing in which the fake identity is used to obtain money from a duped victim.” 

Does NMCCA's conclusion (alongside potentially creating a circuit split) suggest that a specification under Clause 2 might have had more success? Charging Clause 2 in the alternative was not done here. "The conduct in this case is despicable and potentially criminal under the UCMJ[.]" If the acts are despicable, it doesn't seem the government would have difficulty clearing the very low sandbar of service-discrediting conduct.

​Indeed, this case heralds the arrival of the parade of horribles predicted in cases like Ciminelli and Cleveland. The Government’s “exclusive use” theory of criminal liability “makes a federal crime of an almost limitless variety of deceptive actions traditionally left to state contract and tort law—in flat contradiction with our caution that ‘absent a clear statement by Congress,’ courts should ‘not read the mail and wire fraud statutes to place under federal superintendence a vast array of conduct traditionally policed by the States.”

Judges interpret the law as written, not as they wish it were written. And Congress may yet empower the Government to police internet dating sites to ensure that Marines obtain nude photographs from otherwise consenting adults without resorting to loathsome deception. Congress just hasn’t done that in the federal wire fraud statute.