In United States v. Windham, __ M.J. __, No. 20160340 (A. Ct. Crim. App. Nov. 17, 2017) (link to slip op.), a three-judge panel of the Army CCA rejected an equal protection challenge to a prosecution for larceny based on a sham marriage (also known as a contract marriage).

Specialist (E-4) Windham pleaded guilty to larceny (of a housing allowance) and conspiracy to commit larceny (of the allowance), telling the military judge that:

“his marriage to Ms. TG [w]as a ‘fake marriage,’ a “contract marriage,” and stated “we did not get married with the intent of being in a relationship.” The military judge accepted appellant’s plea to conspiracy to commit larceny of BAH and larceny of BAH.

Slip op. at 2. On appeal, Windham asserted that the Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013) (the same-sex marriage case), requires the federal government to recognize his marriage.

The CCA rejected the challenge:

While Windsor nullified DOMA and its extensive applicability to several federal laws and regulations, the Supreme Court continued to recognize the “constitutionality of limited federal laws that regulate the meaning of marriage in order to further federal policy.” For example, even if a marriage was valid under state law, the federal government was not required to recognize, for immigration purposes, a marriage entered into for the sole purpose of procuring a noncitizen’s admission into the United States.

Slip op. at 3 (citations omitted). It concluded:

the issue at bar is not whether appellant’s Texas marriage certificate is or is not valid and should be recognized by the federal government, but rather whether appellant’s sole purpose in entering the marriage was to obtain governmental funds to which he was not otherwise entitled. . . .

A review of appellant’s discussion with the military judge makes it abundantly clear his “sole purpose” in marrying Ms. TG was to obtain a BAH entitlement at the with-dependent rate.

Slip op. at 4.

The important point here is that Windham pleaded guilty, and “admitted to the military judge he married Ms. TG ‘for the sole purpose of obtaining money from the United States.'” Slip op. at 2. That’s a crucial fact. See also United States v. Hall, 74 M.J. 525, 530 (A.F. Ct. Crim. App. 2014) (“What we hold today is simply this: It is not the absence of a perfect or ideal ‘love, honor, and cherish’ motivation of the parties that renders the consequences flowing from the appellant’s actions in the case before us criminal; rather, it is the affirmative presence of a singularly focused illicit one—an intent to fraudulently acquire a government payment stream—that does so.”)

13 Responses to “Army CCA rejects equal protection challenge to larceny conviction based on a sham marriage”

  1. CDR X says:

    I’ve always thought prosecuting sham marriages was itself a waste of government resources.  People get married for lots of reasons, many of them stupid, why is this one criminal?  Seems like there’s a built-in deterrent in that by entering into a sham marriage, you are then legally married to that person and can’t marry someone else without first divorcing, at which point the person you married could take a good chunk of your property. 

  2. Capt. Harrison Byers says:

    I don’t think it’s a per se waste of government resources to prosecute sham marriages, because to secure a conviction, the government needs essentially a confession to a contract marriage.  Cold feet, second thoughts, married just to try it out or get around fraternization?  All defenses, but the idiot who goes around saying “yeah I did it just for BAH” is well….an idiot. 
    The real waste of government resources is investigating alleged contract marriages.  Reminds me of the commander who wanted to investigate a Soldier.  In response to why, the commander said “because he doesn’t love his wife!”  Oh the horror!

  3. Twice Married says:

    I agree with CDR X.  What’s wrong with a black line rule regarding marriage.  If you are legally married, then it should be good to go.  There are so many reasons not to get married, such as giving up assets, retirement benefits, possible children, or the simple fact that it zaps all the romance out of life, that there is deterrent and punishment enough on this issue. 

  4. TC says:

    I’m fairly certain children are possible even without a marriage. 

  5. Sham crime? says:

    It seems to me that this entire criminal theory is judicially created in violation of United States v. Hudson and Goodwin, 11 U.S. (7 Cranch) 32 (1812).  The concept of larceny in these cases is that an honest report of a marriage recognized under state law is a wrongful taking of government property (BAH) because judges have interpreted the term dependent to exclude certain marriages.  If the DoD wants to ban this activity, it should issue a lawful, general order.
    Reliance on civilian case law about sham green card marriages is misplaced.  8 USC § 1325 penalizes marriages entered for the purpose of evading immigration laws.  The federal government also has a unique interest to look beyond the validity of a marriage when enforcing immigration policy.

  6. Kettle Black says:

    I think Capt Byers has it right.  If the idiot is bragging about profiting from a sham marriage, then the investigative cost is likely to be relatively minimal.  There is also the money from the BAH, medical coverage costs, etc that is saved from ending the fraud.  
    For Windham, the opinion mentions he was also convicted of an Article 128 charge.  Perhaps the marriage piece of the case only came about during the course of the assault investigation?
    As for the built-in deterrence of marriage, I don’t think your typical tech school marriages are involving individuals who are especially forward thinking… 

  7. tinfoil wars says:

    The most bizarre aspect of military law on BAH marriages is that if you marry with fraudulent intent but later fall in love you are still guilty. This should be the plot of the next court-martial movie: “You had me at BAH.” (“In a world where getting you married gets you out of the barracks … two people found that tax-free money … was just the beginning.)
    Defense counsel should propose draft instructions that require the government to prove lack of consummation.  

  8. Nathan Freeburg says:

    1.  Who the heck prosecuted this?  And why?  
    2.  Why did he plead guilty?  (It better have been to get out of something worse, else I really really question that decision.)
    3.  Service members get married to get out of the barracks (and collect BAH) all the time (why else would your 11-bang-bang marry the obese 19 year old who already has 4 children).  Other than the (apparently idiotic) guilty plea, I don’t see the difference.  

  9. stewie says:

    Because he isn’t sure if 1-2 of them aren’t his? (I’ll be here all week).
    I think I’m in the camp that people get married for all sorts of stupid reasons…not sure why “because we get more money out of it” is the one that’s criminal.

  10. K fischer says:

    11 bang bang?  Here is a trip down memory lane for you.  Because if you’ve been stationed at Ft. Benning, then you surely know the bang bang lady.

  11. Bill Cassara says:

    K Fischer: My eyes!  My eyes!

  12. k fischer says:

    We love us some Wanda over here on this side of the state because she gives us a little bang bang every 4th of July and New Years.
    Tinfoil Wars:  You’d get sued by the writers of the screenplay for “Green Card” starring Gerard Depardieu and Andi McDowell.
    And, I really don’t see how Windsor affects remotely the previous holding in Bolden, which I appreciate as a taxpayer who funds this kind of fraud, waste, and abuse.

  13. Nathan Freeburg says:

    Ha!  I unfortunately do remember the Wanda billboards.  I thought I had repressed that memory (along with the likes of Scooter’s in Lawton).
    As for this thread: It profits a man nothing to give his soul for the whole world … but for BAH-W?  No need for a CM deterrent.