CAAF will hear oral argument in the Army case of United States v. Acevedo, No. 17-0224/AR (CAAFlog case page), on Tuesday, November 28, 2017, after the argument in Jerkins, on a single issue:

Whether the evidence is legally insufficient to support a charge of kidnapping by inveiglement.

Staff Sergeant (E-6) Acevedo was convicted by a general court-martial composed of members with enlisted representation of kidnapping Private (E-2) AM in violation of Article 134. Acevedo was acquitted of other offenses, including offenses related to sexual acts with AM that occurred after the alleged kidnapping. The Army CCA affirmed the findings and sentence without issuing a written opinion.

The alleged kidnapping occurred after Acevedo, AM, and others were drinking at an off-base bar. AM was 19 years-old at the time, and she wanted to leave the bar with a civilian (who she eventually married). Acevedo and a Sergeant didn’t allow AM to leave the bar with the civilian. Instead, they insisted on calling a cab to take AM back to base. AM got into the cab, Acevedo followed, Acevedo gave the driver his address, and the cab took them to Acevedo’s apartment where Acevedo and AM had sex. The following morning Acevedo gave AM $20 to pay for a cab ride back to base and told her to keep the encounter secret. Later, when he was questioned by law enforcement, Acevedo falsely denied that AM went to his residence that night.

Acevedo was convicted of kidnapping by inveiglement. Kidnapping is an enumerated offense under Article 134. See MCM, Pt. IV, ¶ 92. The elements of the offense are that:

(1) That the accused seized, confined, inveigled, decoyed, or carried away a certain person;

(2) That the accused then held such person against that person’s will;

(3) That the accused did so willfully and wrongfully; and

(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

The MCM also provides the following definition:

(1) Inveigle, decoy. “Inveigle” means to lure, lead astray, or entice by false representations or other deceitful means. For example, a person who entices another to ride in a car with a false promise to take the person to a certain destination has inveigled the passenger into the car. “Decoy” means to entice or lure by means of some fraud, trick, or temptation. For example, one who lures a child into a trap with candy has decoyed the child.

MCM, Pt. IV, ¶ 92(c)(1).

Acevedo’s brief begins with the observation that “in order to commit kidnapping by inveiglement, an accused must intentionally trick the abductee into going to a destination under false pretenses, and hold her there against her will.” App. Br. at 4 (emphasis added). It then attacks the evidence offered to prove these elements, arguing that:

The alleged abductee in this case, Ms. AM, testified that the appellant explicitly told their cab driver where they were going, and she correctly understood this to be the appellant’s address before the taxi departed. She further stated that she told the appellant that she believed they were going to have sexual intercourse before entering his apartment, and he asked he if she was okay with that, and suggested that if she was not she could still take the cab back to DLI. She stated she was okay with it and they indeed had sexual intercourse in his apartment.

App. Br. at 4-5. It’s possible to see trickery in these facts (in that Acevedo insisted on a cab to take AM back to base, but then gave the cab driver his own address), but it’s awfully hard to see how AM was then held (that is, held subsequent to the trickery) against her will.

The Army Government Appellate Division’s brief seems to combine these elements. First, for the trickery, the Government Division argues:

Here, Appellant knew that PV2 AM wanted to either go to Mr. Moore’s house or to her on post residence. Just as in Blocker and the example given in the instructions, Appellant used false pretenses to convince PV2 AM to get into the taxi. Instead, Appellant intended to take PV2 AM to his own residence and did so.

Private AM wanted to leave with Mr. Moore but the Appellant aggressively refused to allow that to happen. Appellant loudly argued with Mr. Moore and violently grabbed PV2 AM’s arm to pull her away from Mr. Moore. The encounter was so disruptive that PV2 AM started crying. Appellant threatened to report PV2 AM for underage drinking and told Mr. Moore that PV2 AM must take a taxi back to her on post residence to avoid trouble. This false representation of the situation caused Mr. Moore to leave and convinced PV2 AM to get into the taxi. Once PV2 AM was in the taxi, the true nature of Appellant’s plan was revealed as he got in the cab himself, gave his address to the cab driver, pulled PV2 AM close to him, and held her hand. A reasonable factfinder could infer from this evidence that appellant intended for his deception to lure PV2 AM away from the safety of Mr. Moore, an individual that she trusted, and into a cab in order to bring her back to his residence for the purpose of engaging in sexual activity. Thus, the evidence is legally sufficient to support the first element of kidnapping.

Gov’t Div. Br. at 7-8. Then, for the holding, the Government Division argues:

Appellant falsely represented the purpose of PV2 AM’ s taking a cab, namely that she needed to get back to her own on post residence safely. Instead, Appellant was intentionally isolating PV2 AM from Mr. Moore and facilitating PV2 AM’s travel to his own residence for the purpose of engaging in sexual activity. Here, the involuntarily nature of PV2 AM’ s detention resulted from force, coercion, and false representations. Thus, the evidence is legally sufficient to support the second element of kidnapping.

Gov’t Div. Br. at 9-10. These arguments use the same acts (not allowing AM to leave with the civilian, insisting she take a cab, etc.) as both the trickery and the holding. Even if this is permissible, it puts the holding chronologically before the trickery, not after it.

The Government Division’s brief does argue that once in the cab “Appellant pulled PV2 AM close and held her hand to ensure her compliance,” Gov’t Div. Br. at 9, but it’s not clear how this was against AM’s will.

Acevedo’s reply brief highlights intervening factors undermining the Government Division’s argument that AM was tricked or lured into the cab, including that:

Ms. AM was aware they were going to walk to a cab stand, and once inside the cab she was aware that SSG Acevedo gave his own address to the taxi driver. . . and she did not provide her own address to the taxi driver when she had the opportunity. Her own testimony confirms she knew where they were going, and she tacitly assented to it.

Reply Br. at 2.

Acevedo’s reply brief also raises the issue of his acquittals, with the assertion that:

Acevedo was charged with assaulting Ms. AM [by grabbing her arm] and was acquitted of that charge. The government’s argument that SSG Acevedo demonstrated willingness to use physical force to hold Ms. AM against her will by this alleged assault is therefore contrary to the findings of the court martial.

Reply Br. at 1 (citations to record omitted). Last term, in United States v. Rosario, 76 M.J. 114 (C.A.A.F. Feb. 22, 2017) (CAAFlog case page), a unanimous CAAF affirmed a CCA’s consideration of facts supporting allegations that resulted in acquittals in the court’s review of a conviction, concluding that the facts that form the basis for both acquittals and convictions are permissible considerations during appellate review. The same logic likely applies in this case, and the mere fact that Acevedo was acquitted of assault by pulling AM’s arm doesn’t mean that the pulling didn’t happen.

Acevedo’s main brief ends with the suggestion that “on balance, the panel may have been loathe to fully acquit SSG Acevedo when he, as an NCO, orchestrated a sexual liaison with a junior enlisted Soldier.” App. Br. at 11. That’s awfully speculative. A clearer explanation for the conviction is found in the military judge’s instructions discussed in the Government Division’s brief:

The military judge defined “inveigle” during instructions as “to lure, lead astray, or entice by false representations or other deceitful means. For example, a person who entices another to ride in a car with a false promise to take the person to a certain designation [sic] has inveigled the passenger into the car.” (JA 87). This example comes from the explanation section under kidnapping. MCM pt. IV, , 92.c.(1); Benchbook, para. 3-92-1.

Gov’t Div. Br. at 6 (marks in original). The problem with this instruction is that it appears to fit the facts of this case without considering that the car at issue was a taxicab over which AM had as much control as Acevedo.

Case Links:
• ACCA opinion (summary disposition)
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief
Blog post: Argument preview

21 Responses to “Argument Preview: Whether going to his place (and not hers) was kidnapping, in United States v. Acevedo”

  1. stewie says:

    So they weren’t wholly confident in their acquitting him of the sexual assaults, thus they convicted him of the kidnapping to “split the baby” and make sure he got kicked out is my possible read.
     
    I’m also guessing fraternization was not on the charge sheet, otherwise that’s probably what they would have convicted him of instead?

  2. Vulture says:

    How is it that being in a moving car does not meet the definition of being held?  Further the deception, and seemingly extortion, occurred at the point that Mr. Moore was told to leave.  What transpired thereafter proceeded from cosidered isolate, subjugate, and insinuate.  AM may have been able to go running screaming down the street but then it was her word against his that she just wasn’t cray-cray.  But in the taxi itself, is not as clear cut as you say Zach.  If she was on base, as she originally believed she would be, it was possible she would have felt more secure and in control.  In control enough to have other service members around to get this fucking creep off her.

  3. Zachary D Spilman says:

    I’d probably agree with you if it were his car, Vulture, and she depended on him to get her home. But it’s a taxicab, and she’s a Soldier, so I think it ridiculous (if not misogynistic) to assert that she couldn’t simply tell the driver to take her home. 

    I do acknowledge the possibility that she felt an implied (or express) threat of repercussions for her underage drinking if she did not go with Acevedo, but that’s not inveiglement.

  4. Vulture says:

    Zach.  No sir.  You are not correct.  Have you ever been an enlisted person at a military school?  Have you ever seen the car party of Joes/Janes  weighting down a taxi?  The protocol is different for getting from one place to another, particularly when more than one destination is in route.  If she had that 20 dollars already, if she had not already been roped in by his actions, if she had control before getting in the taxi you may have a point.  But you don’t because even taxi’s require getting on post with a pass and his car was not there.
     
    So I will see your straw-man argument and raise you a yellow-brick road.  You put forward that she knew that that address he gave was not hers.  But did she know whether that was on post or not?   Did she even know if post was in the same direction?   I will tell you what, in Calcasieu Parish LA its probable cause to have a passenger and driver give different final destinations.  So before you hit me with that being the basis for a legal argument consider the basis that got her into that taxi.  If a cop had been present, right then and there, Acevedo would’ve been bashed for a whole lot more.
    Zach, I’m not a misogynist just because I think Dorothy needs a little help with the wicked witch.  So I’ll be happy the throw water on anything you have to say.

  5. Zachary D Spilman says:

    Mr. Moore told Appellant and SGT Benavides that he would drive PV2 AM back to post instead of his residence. (JA 27). They responded, “You’re not taking our soldier anywhere. She’s not leaving with you.” (JA 27).

    Gov’t Div. Br. at 3 (emphasis added). In other words, Acevedo wasn’t alone in getting her into a cab. 

    On cross-examination, the Ms. AM agreed no one forced her into the cab. (JA 50). She testified that she correctly assumed the address SSG Acevedo gave the cab driver was his own when she heard it. (JA 31 ).

    App. Br. at 3. In other words, she knew where they were going. 

     

  6. K fischer says:

    Stewie is right.  They split the baby and found him guilty of something because he is a fraternizing liar.  

  7. Vulture says:

    Well this is uber-disappointing.  I always though Collateral was a good movie but Jamie Foxx’s character was in control the whole time.  

  8. CorsairF4U says:

    How is it kidnapping when 1) You willingly go, 2) you know where you are going, and 3) you can tell the operator of the conveyance at any time to stop taking you there ?
    I don’t see anywhere in the facts that the Accused confined the victim, tricked her, or otherwise held her against her will.
    @Vulture: key difference in Collateral is that Tom Cruise basically had a gun to Jamie’s head the whole time, plus knew where his mother was (he could kill her if Jamie deviated from the plan), and that little part where he actually confined Jamie to the car, which got Jamie robbed and the two robbers killed by Cruise.

  9. Vulture says:

    Corsair.  Maybe so, but now who is Katie Holmes dating?  The gun that Acevado had to AM’s head was the threat to her career.  The argument for the case went into this further. 

  10. Scott says:

    They should make a mash-up movie of A Few Good Men and Collateral, where Tom Cruise plays an old jaded Navy lawyer who drives witnesses around at gun point in order to get the truth from them.

  11. Scott says:

    And if a 10 second Google source is considered research, it is not currently known who Katie is dating, but she does have a coat that looks like one Jackie Kennedy had:
     
    http://www.dailymail.co.uk/tvshowbiz/article-5126339/Katie-Holmes-modern-day-Jackie-Kennedy-pink.html

  12. Vulture says:

    Scott.  You just about come up with a fantastic idea.  If the defense wanted to put the question of the cabbie in the defense, they should have found the cabbie.  But as of now, he is the straw-man.  I thought heard something about Katie and Jamie Foxx.  Something about art imitating life, at least from Mr. Moore’s perspective.

  13. stewie says:

    Katie Holmes watching Collateral. (Lightbulb!)
     
    Vulture, the gun you speak of was not tied to the cab ride. That gun is no more or less effective if they took separate cars back to the base. What if she were driving, would it still be kidnapping then? She likewise would have at least some control over where the car stopped, and the threat to her career would have remained the same.
    She can tell the cabbie to stop right here, or continue taking me to my place, or hey can you pull over at this MP station?
    Is the cabbie going to say no? Why?

  14. Zachary D Spilman says:

    If the defense wanted to put the question of the cabbie in the defense, they should have found the cabbie. 

    And here I thought reasonable doubt was an honest misgiving generated by insufficiency of proof.

  15. Vulture says:

    Stewie. 
    What MP station?  Is that the one she would have been arrested at had she been driving?  Pretty sure a DUI would have a worse effect on her career.
    Zach’s account states “The following morning Acevedo gave AM $20 to pay for a cab ride back to base …”  If she was already on base, as I suggest above, that might have been enabling to the mental state to make those requests.  But there where no MP’s, no other soldiers, no Mr. Moore.  Only Acevado and a cabbie that she didn’t know, that was under Acevado’s employ, and to whom Acevado had conditioned not telling that she was drunk.  And Acevado’s industry made it that way.
    The argument you make equates free enterprise to free will.  That is not necessarily the case.  If the defense wanted to make that assertion, they should have found the cabbie.

  16. Vulture says:

    Zach.  Then at best the Defense put on a display of exactly what happened that night right in front of the Panel.  They said, “Here, look at this story, it has a great big hole in it.  Now don’t believe anything.”  And in great big flashing grandeur the Panel saw a definition of inveiglement.  They left no doubt in the mind of the Panel as to the trickery and fiat question and sent them to the deliberations as emotionally charged as AM was.
     
    I swear I know these guys.

  17. stewie says:

    Vulture, how is she going to be arrested for cabbing under the influence?? What are you talking about? She could have directed the cabbie to take her anywhere, including, if she was in fear, the MP station. Are folks saying the cabbie wouldn’t have done so? Just a really weird argument you are making in my opinion. That somehow a cabbie is going to have a drunk woman in his cab, asking to go somewhere else, but because he’s “in the employ” of the guy next to her, he refuses to? Come on man.
     
    If she’s in his car, and he’s driving, your argument makes sense. But that ain’t the facts of this case.
     
     

  18. Zachary D Spilman says:

    Because AM had the ability to tell the cab driver to take her home (or to not get out of the cab when it arrived at Acevedo’s) she wasn’t held against her will.  

    Nevertheless, CAAF may well conclude that there was some kind of constructive holding of AM by Acevedo once they were in the cab, based on the rank disparity, threat of disciplinary action, and general atmospherics. 

    I suspect, however, but don’t know for sure (without research) that such a conclusion would constitute a uniquely military rule for the element of holding a person against their will for the offense of kidnapping. 

  19. stewie says:

    ZS, that would then be a case of bad facts making bad law IMO.

  20. Zachary D Spilman says:

    Here – I think – is an example of what real kidnapping by inveiglement looks like:

    You had a car and a driver that evening. Sometime later, you offered me a ride to my home. I said, “Sure.” During the making of the RUN DMC movie, I had been in vans with you and other crew members. I don’t recall having accepted a ride home alone with you before that night.

    At no time that night did I say: “Russell, I will go home with you,” or “Come home with me,” or “I will have sex with you” or “I have the desire to have sex with you.”

    I believe it was an SUV, because I recall having to step up into the car. I don’t know about makes or models. I think the driver was already in the car.

    I got into the car with you. The driver began to drive. I assumed you knew where I lived, because you had sent me 250 balloons, but I gave the driver my address on 19th Street and 2nd Avenue.

    You said to the driver: “No.”

    I didn’t understand, so I said: “Russell?”

    I said, again, to the driver: “19th Street.”

    Again you said to the driver: “No.”

    Then the car doors locked. It was loud. The noise made me jump.

    I didn’t recognize you at that moment. It was disorienting. It was disorienting. I say it twice now because you said “No” twice then.

    I couldn’t open the doors. I couldn’t open the windows. The car was moving. The driver did not stop. He did not take me to 19th Street. He took me to your apartment.

  21. K fischer says:

    To Mr. Simmons defense, he might not have heard her say 19th Street, evidenced by his HBO show where he and other hearing impaired comedians performed back in the 90’s.