The Army CCA’s published opinion in United States v. Sneed, __ M.J. __, No. 20131062 (A. Ct. Crim. App. Mar. 27, 2015) (link to slip op.), is an interesting read. The appellant pleaded guilty, in accordance with the terms of a pretrial agreement, to three specifications of aggravated assault with a means likely to cause death or grievous bodily harm, seven specifications of assault consummated by a battery, and one specification of kidnapping in violation of Articles 128 and 134. He was sentenced to confinement for nine years and a dishonorable discharge. In accordance with the pretrial agreement, the convening authority approved the dishonorable discharge and only six years of confinement.

The appellant’s pleas related to abuse of his girlfriend, who was also a soldier. In particular:

Specialist (SPC) BG, to a variety of emotional and physical abuse. This abuse included an incident where, in the midst of yet another argument [over the appellant’s desire to use BG’s debit card to pay for airfare -zds], appellant shoved a pregnant SPC BG into his closet in the barracks and locked her in for, as he stated, not more than 10 minutes. This act was charged as an act of kidnapping under Article 134, UCMJ. Appellant pled[ed] guilty to the kidnapping as charged.

Slip op. at 2. The kidnapping was the most serious charge the appellant pleaded guilty to committing, as it carries a maximum authorized punishment that includes confinement for life without eligibility for parole. The maximums for each of the aggravated assault specifications is three years; for the battery specifications, six months.

On appeal, the appellant challenged the providence of his plea to the kidnapping offense. Specifically, he asserted that “(1) the judge failed to fully and properly define the offense of kidnapping, and (2) the providence inquiry and stipulation of fact established that appellant’s holding of SPC BG was merely incidental to his attempt to obtain SPC BG’s debit card.” Slip op. at 5. To constitute kidnapping, a “holding . . . must be more than a momentary or incidental detention. . . . Otherwise, as to incidental detentions, a soldier would be subject to conviction and life in prison under Article 134, UCMJ, for an act better described by offenses carrying far lesser punishment.” Slip op. at 5.

The CCA applies settled law and concludes that the kidnapping of BG “was not merely incidental to attempted robbery or any other offense arguably associated with the detention.” Slip op. at 6-8. See also United States v. Jeffress, 28 M.J. 409, 413-14 (C.M.A. 1989). But even though the court finds that the kidnapping was properly charged as a separate offense, it concludes that:

The judge here failed to properly explain the elements of kidnapping to appellant . The judge did not fully and properly define “hold ” as requiring that the holding be more than a momentary or incidental detention. This definition is an essential limit to the scope of the crime of kidnapping under Article 134, UCMJ. Therefore, we must reverse unless it is clear from the entire record that appellant knew the elements, admitted them freely, and pleaded guilty because he was guilty.

Slip op. at 8. However, the court affirms the plea nonetheless:

Our review of the record establishes no substantial basis in law and fact to reject appellant’s plea. To the contrary, the record clearly reveals that appellant well understood the nature of the kidnapping offense under Article 134, UCMJ, freely admitted the elements of that offense and pled guilty to kidnapping because he was guilty of kidnapping.

Appellant never expressed or suggested any pretense that his detention of SPC BG was merely incidental to another offense and admitted additional facts that reflect his understanding that the “holding” element requires more than a momentary or incidental detention. Nowhere did he suggest that confining SPC BG in a locked closet against her will was necessary to obtain her debit card; in both the stipulation of fact and the plea inquiry, he admitted facts sufficient to establish his understanding that the detention must be for an appreciable time; and, he also volunteered facts relevant to both the “holding” and terminal element of the offense when discussing the significant risk of harm he imposed upon SPC BG by locking her in that closet.

Slip op. at 8-9. This is an interesting conclusion, as the judge’s failure to properly define “hold” strikes at the heart of the issue of whether putting BG into the closet was merely incidental to the appellant’s efforts to obtain her debit card. The CCA also notes that the “appellant quite intelligently articulated his understanding that wrongful confinement is sufficient to constitute kidnapping,” slip op. at 8, but this is just a legal conclusion and not an adequate factual basis to support a plea. See United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002) (“It is not enough to elicit legal conclusions, the military judge must elicit facts to support the plea of guilty.”). Moreover, the posture of the case begs the question of whether anyone in the courtroom at the time of the plea understood that the kidnapping had to be more than merely incidental to another offense.

However, the CCA’s opinion doesn’t reproduce the entire plea inquiry verbatim, so perhaps the appellant made additional admissions that are relevant to this determination.

15 Responses to “The Army CCA wrestles with a seemingly incidental kidnapping”

  1. Tami a/k/a Princess Leia says:

    IMHO, the stipulation of fact and excerpts from the Care inquiry establish a kidnapping.  She was almost 9 months pregnant with their child, he threw her in the closet for her refusal to give him her debit card, she landed on her “very pregnant stomach,” she pounded on the door and yelled at him to let her out, he didn’t.  Then he said he’d let her out if she agreed to give him her debit card, so she agreed to do so.  Then when he let her out, he disclaimed interest in her debit card, and he kicked her.  He admitted his conduct caused her emotional stress and could have caused problems w/ the baby–she could have gone into labor, and there could have been complications w/ the baby after birth, due to her falling on the floor on her stomach.  He gave facts to explain PGOD and service-discrediting.  10 minutes may not seem like a long time, but then I’ve never been locked in a closet against my will.  To her, it probably seemed like hours.  There’s no requirement for the “holding” to last for a minimum amount of time.  The “holding” of her wasn’t a “necessary element” of another offense.  ACCA decided the debit card issue was a pretext for more abuse.  Would have been nice if the judge had explained “held” in more detail, but based on the facts included in the opinion, I don’t have a problem with affirming a conviction for kidnapping in this case.

  2. (Former) ArmyTC says:

    I’m with Tami on this. Had he held her down until she gave up the card (a robbery scenario) I’d disagree. However, under this set of facts, locking her in the closet against her will – even if conditional – takes the conduct to another level.

  3. Zachary D Spilman says:

    Gee. I felt that the novella stipulation – laden with colloquialisms (“her very pregnant stomach”) and rhetorical flourishes (“the accused locked the closet. She was trapped”) – was particularly unhelpful. 

    The accused demand [sic] she give him her debit card to buy a plane ticket for his brother to visit El Paso from Houston. SPC [BG] refused explaining she needed to save money for the baby. The accused persisted and the two began to argue. Finally, the accused grabbed her and threw her in his closet. She landed on her very pregnant stomach and the accused locked the closet. She was trapped; she banged on the door and begged him to let her out. He refused; he kept her locked in the closet. She kept yelling and banging on the door. He told her he would release her when she would stop and give him her debit card. With no choice, she relented and said she would give him her debit card. He let her out

    Demand for card; argument; holding; offer to release if she produces the card; acquiescence; release.

    That seems awfully incidental to the effort to obtain the card.

  4. stewie says:

    “very pregnant” is simply the opposite of “kinda pregnant.”

  5. Tami a/k/a Princess Leia says:

    If the release had followed immediately after the holding, then I would have no problem agreeing that the holding was “incidental.”  Or even if he had released her immediately after the first time “she begged” him to let her out.  But he didn’t.  “No more than 10 minutes” becomes 10 minutes.  That’s more than de minimus.  If he hadn’t locked the closet door, then it would be a much closer call.  But by throwing her in a closet, he created a physical barrier to her freedom, then made it impossible for her to escape by locking the door.  It might also be a closer call.  If he had been charged with and pled guilty to extortion (i.e. I will continue locking you up in the closet until you give me your debit card), then I would totally agree there’s no basis for a kidnapping charge, because the holding is necessary for the extortion.  And maybe the kicker for ACCA was that, in the end, he didn’t “obtain the card” after she agreed to give it to him because it was “too much work” to get it.
    As far as unhelpful, irrelevant, or silly facts in an SOF, I saw it all the time with TCs.  For example, does the judge really care that there are over 200 different chemicals in marijuana, some of them carcinogenic?  No, so I had no problem advising a client to agree to those facts.  And if a woman is almost 9 months pregnant, yes, it should be obvious she has a “very pregnant stomach” (though there are some women fortunate enough to have a baby without looking “very pregnant”).  But at the same time, that language could go to the risk of injury to her and/or her child.  The larger your stomach, the less cushion there is, so if you fall on your stomach, there’s a higher risk of injury.  In Afghanistan, it wasn’t unusual for women to go to the hospital with ruptured uteruses because their midwives pushed down on their stomachs during labor.

  6. Tami a/k/a Princess Leia says:

    I would challenge any guy in this forum to explain how it feels to have a “very pregnant stomach.”  Pregnant is pregnant, but having a “very pregnant stomach” versus a “not very pregnant stomach” makes a world of difference physically and emotionally.

  7. TC says:

    So Zack, is a kidnapping for ransom incidental to the kidnapper’s effort to obtain money?
    Demand for money; offer to release if money is produced; acquiescence; release.

  8. stewie says:

    Tami, I was really just taking the opportunity to make a joke, bad as it was, about the word choice (I would have used how far along she was instead of “very”) not making a serious comment on the dangers of what happens when someone is far along in their pregnancy and get assaulted/hit in their stomach…it seemed self-evident to me exactly how bad that is.

  9. Zachary D Spilman says:

    No TC. See United States v. Jeffress, 28 M.J. 409 (C.M.A. 1989), cited above, and particularly the discussion in that opinion of the three theories of kidnapping under the UCMJ.

  10. Tami a/k/a Princess Leia says:

    No problem.  :)  Zachary makes a great point about “useless language” in SOFs, and I agree saying she had a “very pregnant stomach” isn’t “very helpful.”

  11. TC (not trial counsel) says:

    How about she was “strenuously pregnant”.

  12. Bill Cassara says:

    Roundly pregnant?  Sorry, couldn’t resist.

  13. stewie says:


  14. Just Another ADC says:

    her time in the closet was, per the court, a very pregnant pause….

  15. J says:

    I once saw an SJA and TC argue about a “kidnapping” case. The SJA had charged kidnapping at NJP, where in the midst of a heated argument, the accused closed the victim in their closet for “not more than 10 seconds.” When he refused NJP, the SJA was demanding the TC get ready for a court-martial, the TC was not happy.