United States v. Lee--NMCAA

In Lee, a published opinion, the appellant was convicted, MJA, of indecent conduct and adultery at a Special Court-Martial. He was sentenced 120 days, RiR, and a BCD.

​Appellant asserts eight assignments of error [AOE], which we renumber as follows: (1) that the evidence for Specification 1 of the Charge (indecent conduct) is legally and factually insufficient; (2) that the evidence for Specification 2 of the Charge (adultery) is legally and factually insufficient; (3) that the offense of indecent conduct in Specification 1 of the Charge is preempted by Article 120b(c), UCMJ; (4) that the military judge erred when he denied the Defense motion to suppress evidence; (5) that the military judge erred when he ruled that the Defense was not entitled to certain evidence in discovery; (6) that the Entry of Judgment as written is deficient; (7) that the Government committed a discovery violation when it failed to provide the Defense with certain impeachment evidence in discovery; and (8) that the military judge effectively acquitted Appellant of Specification 1 of the Charge when he acquitted him of the word “persuade.”

​We find merit in Appellant’s first AOE because the evidence for Specification 1 of the Charge is legally insufficient,2 and we set aside the guilty finding and dismiss this specification. While we do not find merit in Appellant’s second AOE, we do find merit in Appellant’s fourth AOE, set aside the guilty finding for Specification 2 of the Charge, and authorize a rehearing for this specification. In light of these conclusions and action, we also set aside the sentence and do not reach the remaining AOEs

The court construes the Article 134 charging as an attempt to avoid having to prove an overt act.

We do not find the Government’s attempt to avoid the burden of proving an overt act persuasive for a number of reasons. First, the Government’s argument on appeal ignores concessions already made at trial. In its response to Appellant’s motion for a finding of not guilty of this offense under Rule for Courts-Martial [R.C.M.] 917, the Government did not argue that it was not required to prove an overt act, but instead argued that “the substantial step for an attempt can be satisfied by words alone.” Allowing the Government “to tell the military judge one thing . . . and then . . . assert something else on appeal . . . would go against the general prohibition against taking inconsistent litigation positions.”

On the indecency issue,

• Attempt requires proof of an overt act “ensures that mere thought crimes are not prosecuted."
• The substantial step must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.
• Courts must be cautious about “treating speech (even obscene speech) as the ‘substantial step’ because it would abolish any requirement of a substantial step.”
• As both this Court and CAAF have previously found, “an attempted enticement offense charged under Article 134, UCMJ, . . . must incorporate some of the elements that would have been present had an Article 80, UCMJ, offense been alleged.”
  • These elements include that
    • (1) the accused specifically intended to commit the substantive offense.
    • (2) that the accused took a substantial step toward persuading, inducing, or enticing a minor to engage in illegal sexual activity.”
• While the military judge did not issue special findings, it appears based on his written denial of the Defense R.C.M. 917 motion that he did not consider a substantial step to be a required element of Specification 1 of the Charge. We find this to be an erroneous view of the law under the controlling case precedent.

On the suppression issue,

• Data stored within a cell phone falls within the Fourth Amendment’s protection.
• Such devices present “distinct issues,” and “[t]he prohibition of general searches is not to be confused with a demand for precise ex ante knowledge of the location and content of evidence.”
• The MJ correctly concluded the search of images was not plain view.
• The MJ correctly concluded the NCIS agents exceeded the command authorization.
• The MJ incorrectly found a lack of deterrent effect.
  • The agents acts were not negligent.
  • The agent should have known the search was illegal.
  • The acts were not accidental.
  • The cost of dismissing an adultery charge is "not too high a price" for dismissal and enforcing the need to stay within the limits of a command search authorization.
  • There was prejudice because without the results of the illegal search the government could not of established an essential element of the charge.

The findings and sentence are set aside, the indecency charge is dismissed with prejudice, and a rehearing is authorized on the adultery charge.