NMCCA released its unanimous opinion in United States v. Nelson, siding with Nelson, the appellant, and setting aside the conviction.
Nelson opinion here.
Nelson presents two issues of particular interest: (1) the adequacy of Article 31(b) warnings and (2) pleading requirements for an Article 133 charge that incorporates, or partially incorporates, another—in this case, an offense under Article 107, False Official Statements.
In October 2017, Lt Cdr Nelson, a Navy Reservist, took orders to Bahrain. While he was there, he frequented and befriended several Thai prostitutes, whom he later invited to live with him in government-funded housing. In January 2018, NCIS interviewed appellant for two hours as part of an investigation, and, while they provided an Article 31(b) advisement for an Article 134 violation for patronizing the prostitutes, they did not warn him that he was also suspected of failing to report other servicemembers’ sex-related misconduct, and downplayed the seriousness of his conduct.
In May 2018, he was redeployed to New York City, and failed to report for his first full day of work on 19 June. His commanding officer reported his absence and filed a missing persons’ report, declaring him a deserter on 21 June. Eventually, U.S. Marshals apprehended appellant at his apartment, and he was subsequently detained at Ft. Hamilton. When Army police informed him that he was being detained on a deserter warrant, appellant replied that he had already fulfilled his obligation and was no longer on active duty.
At a court-martial, Nelson was convicted, contrary to his pleas, of violations of Articles 86 (unauthorized absence terminated by apprehension), 133 (conduct unbecoming an officer for knowingly cohabitating with prostitutes and making a false statement regarding his active duty status), and 134 (patronizing prostitutes).
II. Nelson’s Claims on Appeal
On appeal to NMCCA, Nelson asserted four assignments of error: that (1) the military judge, after finding that NCIS violated Article 31(b), suppressed Nelson’s statement as to one charged offense, but erroneously allowed the government to introduce the statement to prove the remaining offenses; (2) one of the Article 133 specifications failed to state an offense because it did not incorporate all of the elements of Article 107, (3) that the evidence that the Government offered to prove the same Article 133 false-statement charge was legally and factually insufficient, and (4) that the sentence was inappropriately severe.
A. Voluntariness and Article 31(b) Warnings
At trial, the judge found that NCIS’s Article 31(b) warning to appellant—that he was suspected of patronizing prostitutes in violation of Article 134—was insufficient because it failed to alert him that he was also suspected of failing to report others’ misconduct. Although the judge suppressed these statements with respect to the charge of failure to report, he admitted the statements with respect to the charges of conduct unbecoming for cohabitating with prostitutes and patronizing prostitutes. Reviewing the judge’s decision for abuse of discretion, the NMCCA found that the statements were voluntary under both Article 31(b) and the Due Process Clause, and that suppression was therefore “inconsistent with public policy.”
B. Conduct Unbecoming for False Statement about Duty Status
NMCCA determined that the false-statement specification stated an offense, but that the evidence to support the offense was insufficient. During pre-trial motions, Appellant moved to dismiss the Article 133 false-statement specification because it only partially incorporated Article 107; in an earlier motion, the Government had asserted that the Article 133 offense intended to incorporate all elements of the Article 107 offense. In response, the Government changed its theory of criminality, arguing that the Article 133 charge deliberately diverged from Article 107 to account for “contingencies of proof.” NMCCA held that, under this new theory, the specification stated an offense on its face because “it alleged (1) that Appellant did a certain act; and (2) that under the circumstances, this act constituted conduct unbecoming”—regardless of whether it fully incorporated Article 107.
Nevertheless, the appellate court sided with the appellant on the question of whether the evidence was sufficient to support a conviction. In the NMCCA’s view, because the Government repeatedly relied on the “officiality” of appellant’s statement in the argument, the case cut too close to Article 107. In so holding, the NMCCA adopted the CGCCA’s holding in United States v. Livingstone, 78 M.J. 619, 624 (C.G. Ct. Crim. App. 2018), concluding that “If the Government’s theory of liability or proof did not rely on the underlying conduct also constituting the specific offense of false official statement under Article 107, then the evidence must support that Appellant’s conduct was unbecoming—standing alone and independent of whether it constituted the specific offense of false official statement.” Finding no such evidence, the NMCCA vacated Appellant’s conviction on the false-statement specification.
After setting aside the false-statement specification, the NMCCA reassessed the sentence and determined that the court-martial would have imposed a sentence no higher than forfeiture of $6,595 pay pay per month for four months and a dismissal.
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