CAAF decided the Army case of United States v. Acevedo, 77 M.J. 185, No. 17-0224/AR (CAAFlog case page) (link to slip op.), on Tuesday, February 6, 2018. Focusing on the “somewhat unique circumstances” of the case, a majority of CAAF concludes that the conviction of kidnapping by inveiglement (luring or enticing) is legally sufficient, and affirms it and the decision of the Army CCA.

Judge Sparks writes for the court, joined by all but Judge Ryan who dissents.

Staff Sergeant (E-6) Acevedo was convicted by a general court-martial composed of members with enlisted representation of kidnapping Private (E-2) AM by inveiglement, 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.

CAAF then granted review of four issues. Three were Dalmazzi/Ortiz trailer issues. The fourth questioned:

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

A majority of CAAF finds that the evidence is sufficient. Judge Ryan, however, rejects this holding as “contrary to the precedent of the Supreme Court, the federal courts of appeals that have considered the issue, and our own Court,” and she invokes CAAF’s “heightened responsibility to ensure that servicemembers receive fair and impartial justice, instead of a rough form of justice.” Diss. op at 4 (marks and citation omitted).

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 conviction was based on a taxi ride from a bar where he was drinking with the 19 year-old alleged victim, Private AM. When AM’s civilian boyfriend – RM – said it was time to leave the bar, Acevedo:

became aggressive and told RM, “[y]ou’re not taking my solider anywhere…. I saw her drinking, if she doesn’t get in a cab and go back to base, I’m going to report her for drinking.” PV2 AM testified Appellant then grabbed her arm to prevent her from leaving with RM. . . .

Slip op. at 2. Acevedo and AM then left the bar, and:

AM testified she assumed they would get her a taxi to take her back to base. After the taxi arrived, however, Appellant unexpectedly followed behind her into the taxi, and gave the driver an address she assumed was his home address. Appellant then closed the taxi door and the driver drove away. During the taxi ride, PV2 AM testified Appellant pulled her next to him and held her hand while Appellant chatted with the driver. Appellant and PV2 AM did not speak during the five to ten-minute ride. When they arrived at Appellant’s apartment, PV2 AM exited the taxi because she was “afraid that if I did something other than what I knew he wanted me to do, he [would] just go ahead and tell my command that I been drinking under age.

Slip op. at 3.

The majority finds these facts sufficient to prove kidnapping by inveiglement. Addressing the first three elements (because Acevedo did not challenge the sufficiency of the terminal element), Judge Sparks explains that first:

when PV2 AM entered the taxi, Appellant followed her into the taxi and gave the driver his home address. Consequently, a rational trier of fact could have found beyond a reasonable doubt that PV2 AM was inveigled by Appellant into entering the taxi under the false representation she was being taken to base.

Slip op. at 4-5 (citations omitted). Second:

Under the unique facts of this case, a rational trier of fact could have found Appellant’s previous threat of disciplinary action mentally coerced PV2 AM into staying in the taxi against her will.

Slip op. at 5. And third:

the circumstantial evidence shows Appellant specifically intended to hold PV2 AM against her will through mental coercion.

Slip op. at 6. Accordingly:

Under the somewhat unique circumstances of this case, we conclude that the evidence is legally sufficient to find Appellant committed the offense of kidnapping.

Slip op. at 6.

Judge Ryan, however, strongly disagrees.

Beginning with the declaration that Acevedo “abused his position of authority and likely should have been charged with the offense of maltreatment,” Judge Ryan’s dissent is rooted in the observation that:

Kidnapping is one of the most heinous offenses known to the law. . . . The Court’s decision today trivializes both the fear and force attendant to this serious offense and the horror faced by true kidnapping victims. In other words, it directly disregards the Supreme Court’s direction in Chatwin, to guard against the “careless concept of the crime of kidnapping” and recognition that such a serious offense is not intended to punish “general transgressions of morality” that do not meet the statutory elements of kidnapping.

Diss. op. at 1. “[T]he actual facts of this case,” Judge Ryan explains, “reveals that it is wholly distinguishable from the usual inveiglement case, where a victim is tricked into entering a vehicle driven by the accused or by an accomplice of the accused and solely controlled by the accused.” Slip op. at 1-2. Here, however, “there is zero evidence that PV2 AM was held against her will. Rather, Appellant and PV2 AM were in a taxi, a commercial vehicle for hire being driven by a third-party with no ties to either PV2 AM or Appellant.” Diss. op. at 2 (emphasis in original). Furthermore, for the element of holding the victim against their will, Judge Ryan finds that:

the “mental coercion” the majority deems legally sufficient to make [AM] unable to redirect the cab is fear of getting in trouble for underage drinking. . . .

Whatever level of mental coercion is sufficient, the fear of getting into trouble is not sufficient “fear” to constitute mental restraint for this serious felony.

Diss. op. at 3.

Judge Ryan concludes her dissent with a broadside against the climate surrounding military prosecutions in sex cases:

In the current climate, where it appears that neither the convening authorities nor the lower courts are immune from external pressures, see, e.g., United States v. Barry, Dkt. No. 17-0162, Finding and Facts of Conclusion from DuBay Hr’g 6 (C.A.A.F. 2017) (finding “external pressures on the military justice system”) [CAAFlog case page]; United States v. Riesbeck, __ M.J. __ (1, 5) (C.A.A.F. 2018) [CAAFlog case page]; United States v. Boyce, 76 M.J. 242, 251 (C.A.A.F. 2017) [CAAFlog case page], this Court has a heightened responsibility to ensure that servicemembers receive fair and impartial justice, instead of a “rough form of justice.” United States v. Denedo, 556 U.S. 904, 918 (2009) (Roberts, C.J., joined by Scalia, J., Thomas, J., and Alito, J., concurring in part and dissenting in part). Rather than being complicit in saving the Government from its charging oversight, and diluting the concept of “mental coercion” to the degree that the majority has done to salvage a conviction, we should do as we did in United States v. Bright, 66 M.J. 359 (C.A.A.F. 2008), and call this charge and specification legally insufficient, as it surely is.

Diss. op. at 4.

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

11 Responses to “Opinion Analysis: Under somewhat unique circumstances, the kidnapping conviction is legally sufficient in United States v. Acevedo”

  1. Vulture says:

    Given Judge Ryan’s analysis in the “Lego Block Tie Fighter” case, U.S. v. Wilson, the dissent and the rational isn’t surprising.  And when she talks about complicity that isn’t a good sign for the Government.  So it’s her specificity and exacting view that makes the distinction between morality and the illegality worth considering.
    But I still disagree.  The taxi being a private vehicle and not being in enough “fear” overlooks the mental state of AM to form the image of what she would have to do.  Placing another person in the position of having to recoil, struggle, or cry for help is as trauma inducing as fear as Judge Ryan defines it.  The line between being a soldier and then having to risk the roles from rebuking to wailing for your freedom is just as demeaning, and therefore debilitating. 
    Call me a misogynist, “Com’on man” me, or what ever.  
    If we shadows have offended think but this and all is mended.  Autocorrect.

  2. Vet Lady says:

    Vulture,
    You’d only be a misogynist if your take only applies to women…does it?  Would you expect a male to be intimidated under those exact circumstances?  To the level that it’s “trauma inducing”?  I don’t typically side with Judge Ryan (almost never!), but I think she nailed this.  Fear of getting into trouble doesn’t equate to the type of fear someone feels when they cannot get away from their kidnapper, imo.  There are plenty of things to charge the guy with…but kidnapping shouldn’t have been one of them – whether the victim is female or male.

  3. Sir Visdis Crediting says:

    I expect we’ll soon see a smear job profile on Judge Ryan being too insufficiently on board wifh #MeToo.

  4. (Former) ArmyTC says:

    Judge Ryan seems to show her lack of military experience by assuming a drunk Private E-2 wouldn’t be scared to death of a Staff Sergeant who is screaming and making threats to report her. 
    I hope Judge Maggs can bring some common sense military experience to CAAF.
     

  5. tinfoil wars says:

    Former ArmyTC, check yourself before you wreck yourself. Actually, check her bio. 

  6. muad'dib says:

    (Former) Army TC: you’ll be hard-pressed to convince most people here by  that Judge Ryan is lacking in the “military experience” department. 
    Important bit from the facts: Appellant telling the victim, “Are you okay with this? If not, you can get back in the cab and leave.” Standard kidnapping behavior. Clear evidence of inveiglement.
    All jokes aside, I get where the majority is coming from. But I’m with Judge Ryan on this one. “Involuntariness” is the key here. Even if the victim was tricked into the cab (and it sounds like she was) it hardly seems like she was deprived meaningful control over where she was and where she could go. I get it, he’s a sergeant, she’s a junior enlisted, he’s being a slimey douche. But I have a hard time saying “yes, she was confined against her will” on these facts. There are other criminal statues we could use to punish him for his behavior.

  7. JBF says:

    I can’t tell if (Former) Army TC is joking, or genuinely has no idea.Judge Ryan was an active duty Marine for twelve years.  From her CAAF biography:

    Before entering the private sector, Judge Ryan served on active duty in the United States Marine Corps. She served in units within the II & III Marine Expeditionary Forces as a Staff Officer, Company Commander, Platoon Commander and Operations Officer. Her tours included deployments to the Philippines during a coup attempt and to Saudi Arabia during Desert Shield and Desert Storm.
    Judge Ryan attended law school under the Marine Corps Law Education Program at the University of Notre Dame (1995), where she was a member of the law review, received awards for legal writing and outstanding scholarship, and graduated first in her class, summa cum laude. As a judge advocate, Judge Ryan served as a trial counsel and chief trial counsel in Okinawa, Japan, and Quantico, Virginia. She was then selected to serve as General Charles C. Krulak’s Aide de Camp.

    All current CAAF judges have served in the U.S. Armed Forces.  Their biographies are included in this brochure.

  8. k fischer says:

    As I stated in an earlier post, Stewie is right.  I think that they split the baby and convicted him of the closest thing on which they could find guilt beyond a reasonable doubt, then gave him one year’s confinement and a BCD.
     
    Pretty clear from the facts in the opinion that Acevedo used his position of authority to isolate her from her boyfriend under the false premise of getting her back to base, so he could get her into a taxi he directed towards his home in order to have sex with her.  I think that fraternization and maltreatment would have been much better charges to hang their hats on, but apparently, they were not charged by the Government who very well should have charged them.
     
    Since I do not like the watering down of the kidnapping charge in this case (like the conflation of sexual assault with boorish behavior we have seen in the #metoo movement espoused by Mark Damon [intended sic]), I really appreciate Judge Ryan’s encouraging words calling out how Accuseds’ trials are adversely affected by external pressures.  Having said that, I don’t have a lot of heartburn for this particular NCO getting a BCD and a year to think about what he did.  He should be sending his defense counsel Christmas cards every year thanking them for the great job in ensuring that he did not have to register as a sex offender for the rest of his life.  

  9. Vet Lady says:

    To answer your question, yes I would expect a male private to be just as scared as a female private about being reported for underaged drinking to qualify as mental coercion. 

  10. k fischer says:

    The post above was from me.  I typed in “Vet Lady” into the name box accidentally [sic unintended]

  11. Vulture says:

    Vet. Lady.  It is not just about being scared.  It’s also about being reduced to being ensnared, having to recoil, having to squirm your way out of the trap.  Imposed upon by that kind of inducement isn’t just like saying, “Hey I don’t like this movie, I am leaving.”  A man or a woman, I think, would recede from the choice of being the victim that way when they never had the power to prevent those circumstances in the first place.  There is one antagonist in this contention, and it is Acevedo.  Judge Ryan is gonna do what Judge Ryan is gonna do.