Navy-Marine Corps Court of Criminal Appeals

United States v. Armandariz, __ M.J. ___ (N-M Ct. Crim. App. 2022).

"Enlisted" members convicted him of various sex offenses, adultery, orders violation, and adultery, and they sentenced him to 18 months and a DD.

"He was charged with an orders violation for misusing his government office for sexual activity [Charge I]; two specifications of sexual assault by bodily harm for digitally penetrating Sgt November’s vagina and for penetrating her vagina with his penis [Charge II, Specifications 1 and 2]; one specification of abusive sexual contact for grabbing Sgt November’s breast [Charge II, Specification 3]; fraternization [Additional Charge I]; and adultery [Additional Charge II]."

 (Note, he was sentenced in 2017 so he will have served confinement to his MRD, minus any other good time credits.)

​This sexual assault case is before us a second time. In 2019, we found legal error when Appellant’s squadron executive officer [XO] approved a search authorization. The Judge Advocate General of the Navy certified that issue to the Court of Appeals for the Armed Forces [CAAF], where our decision was reversed and the case was remanded. CAAF affirmed one of Appellant’s findings of guilt for violating a general order by fraternizing—a finding we affirmed—because the search produced no evidence pertinent to that specification. We now review Appellant’s findings of guilt of two specifications for violating a lawful general order, one specification of sexual assault by bodily harm, one specification of abusive sexual contact by bodily harm, and one specification of adultery in violation of Articles 92, 120, and 134, Uniform Code of Military Justice [UCMJ].

​Appellant raises 11 assignments of error.

1. Factual and legal insufficiency.

2. One of the three presiding military judges had a conflict of interest.

3. MJ abuse of discretion denying a motion to suppress evidence seized from his body, phones, vehicle, and wall locker.

4. IAC.

5. MJ abused discretion in granting the Government’s Mil. R. Evid. 412 motion.

6. MJ erred letting the TC argue a “false exculpatory” statement.

7. MJ abused discretion when he declined to give the members an adverse inference instruction for the complaining witness’ refusal to provide her cell phone or for the Government’s decision not to obtain a search authorization for her phone.

8. TC's improper argument by speculating that a member’s question indicated the member already believed Appellant was guilty.

9. MJ abused his discretion in denying Appellant’s M.R.E. 412 motion as untimely.

10. Ramos v. Louisiana.

11. Cumulative errors.​

​We find merit in Appellant’s first AOE pertaining to the sexual assault, abusive sexual contact, and adultery specifications. . . . we also find merit in Appellant’s second AOE concerning the appearance of bias on the part of the military judge. Because this prejudicial error affects the remaining specifications for violating a lawful general regulation and the previously-affirmed specification for the orders violation for fraternization, we remand for a new trial, absent the specifications that were found factually insufficient.

1. Standard issues in sexual assault cases--inconclusive DNA and no DFE of the complaining witness's cellphone.

​Just because DNA evidence does not “match up” with a complaining witness’ account is not itself reason to find factual insufficiency, but this does force us to look even harder at the surrounding circumstances of the incident. Sgt November testified that this assault took place in Appellant’s office. From the cell phone records, we have solid evidence of a timeline. Sgt November entered Appellant’s office building around 0805 and immediately went with him into his office. She was finally outside of the building making a 44-second phone call to her boyfriend at 0855. This was 50 minutes after she entered the building. During that time, we know that she was actively sending texts to her boyfriend and a cousin. We also know that whatever else was occurring in the office, it included her actively using her phone consistently during the entire time period. The issue of what happened to Sgt November’s cellphone also gives us pause. A thorough investigation would have looked into the substance of those text messages. A text message could have been contemporaneous evidence of Sgt November’s present sense impression or her then-existing mental, emotional, or physical condition. The fact that the Government did not obtain this information is not necessarily fatal to its case—though one can easily imagine the devastating use Appellant could have made of the substance of the texts if they were merely innocuous. But when Sgt November’s own sworn testimony concerning whether she was ever asked to produce her phone was flatly contradicted by her own former VLC, this exacerbated an already bad situation for the Government. It is a fair inference that Sgt November did not want the substance of those text messages disclosed and she declined to produce them for the Government—which would have assuredly meant the Defense would also have received them—and then was less than candid in her testimony about that production request.

The complaining witness had refused access to her cellphone and the TC declined to seek a judicial order, which leads to the adverse inference question that was not resolved by the court.
​
Recommended reading? Lisa J. Steele, Investigating and Presenting an Investigative Omission Defense. 57 CRIM. L. BULL. (2021).

The witnesses immediately after the fact also testified to Sgt November’s composure. While it is true that sexual assault victims can behave in a myriad of ways, the record does not indicate Sgt November exhibited any immediate signs of distress or trauma. We also note that the DNA examiner did not even test for blood in Sgt November’s underwear, because he saw no visual signs of any. The record indicates the underwear was black but had a white interior lining in the crotch area. Sgt November testified that when she went to the bathroom later, she saw blood in her underwear and became upset.

2. Standard issue in these types of cases--what's the motive.

​The record provides evidence of Appellant’s version of events. He told another Marine that Sgt November came onto him and became upset when he would not escalate the sexual activity in his office. Given their prior sexual history, the DNA evidence, the continuous text messaging, and the issue with Sgt November’s cell phone, Appellant’s version of events—even if exaggerated—does not appear inherently unreasonable, especially given the flaws in the Government’s case, and strikes us as a “fair and reasonable hypothesis except that of guilt.” The Government was obligated to prove its case beyond a reasonable doubt. It did not.

The recusal issue relates to the MJ's post-service employment--undisclosed at the time of trial. Note, trial was at MCAS Miramar in the Western Judicial Circuit.

​Just over two weeks after the Article 39(a) session, the military judge applied for a civilian position as a Highly Qualified Expert [HQE] in support of Marine Corps trial counsel in the Western Region. The HQE works in Camp Pendleton, California, and works closely with the Regional Trial Counsel [RTC]. The RTC supervises all trial counsel in the Western Region. One of the roles of the HQE is to provide guidance in complex cases, especially sexual assault cases. Four days later, the military judge emailed the parties informing them of his rulings, but without any analysis. A written ruling was only attached to the record of trial about a month after the announcement of sentence. Appellant was never aware of the military judge’s HQE application. These facts concerning the military judge’s prospective employment were unknown at the time of trial and during Appellant’s first appeal to this Court and to CAAF. In an unrelated case, United States v. Cabrera—that is still pending with this Court—these facts came to light and we ordered a post-trial hearing. Appellant moved for production of the transcript of the post-trial hearing. The Government provided it to the Court and moved that it be attached to this record of trial.

​The NMCCA reviews for plain error not abuse of discretion. (Note, this standard of review issue arose in Rudometkin, pending decision at CAAF.)

​Here, Appellant never knew—or could reasonably have known—about the issue of the military judge’s prospective employment until after his first appeal to this Court. Without any disclosure from the military judge, Appellant had no opportunity for voir dire or challenge on this issue; consequently, there were no findings of fact, conclusions of law, or even a chance for a forfeiture or a waiver by Appellant. Therefore, we review this alleged constitutional error de novo and test for prejudice under the Chapman [386 U.S. 18, 24 (1967).] standard. “In applying a de novo standard, we follow the guidance of [CAAF], which has applied the same standard when facing questions that the appellant could not reasonably have raised at trial.”

The NMCCA also analyzed under Liljeberg. "Even with having found a constitutional error that is not harmless, we turn to the Liljeberg factors. We find the “the risk of injustice to the parties in the particular case” favors Appellant[.]"

The government "concedes should have been disqualified because of his civilian employment application. The military judge ruled on substantive motions, some of which touched the specifications in this case that have not been set aside and dismissed with prejudice. This was also a contested case where, because the issue was not disclosed, Appellant had no opportunity to object or even an opportunity to seek a remedy in clemency." "the Government concedes as much and also concedes that he should have been disqualified."

Judge Deerwester dissents in the dismissal of ​ Specifications 2 and 3 of Charge II and the sole Specification of Additional Charge II.