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