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