UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

COOK, HAIGHT, and WEIS1

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E1 JOSE I. AYALA 

United States Army, Appellant 

ARMY 20130610 

Headquarters, Joint Readiness Training Center and Fort Polk 

Randall Fluke, Military Judge 

Colonel Samuel A. Schubert, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Aaron R. 

Inkenbrandt, JA; Captain Nicholas J. Larson, JA (on brief). 

For Appellee: Colonel John P. Carrell, JA; Major Daniel D. Derner, JA; Major A.G. 

Courie III, JA; Captain James P. Curtin, JA (on brief). 

22 July 2015 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

COOK, Senior Judge: 

 A military judge sitting as a general court-martial convicted appellant, 

consistent with his pleas, of attempting to remove property to prevent its seizure, 

conspiracy to commit housebreaking, conspiracy to obstruct justice, failure to go to 

place of duty (four specifications), willfully disobeying a noncommissioned officer, 

false official statement (three specifications), wrongful possession of marijuana, 

wrongful use of marijuana (two specifications), larceny (five specifications), 

housebreaking (five specifications), obstructing justice, and soliciting another to 

remove property to prevent its seizure, in violation of Articles 80, 81, 86, 91, 107, 

112a, 121, 130, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 

 

1

 Judge WEIS took final action in this case while on active duty. 
AYALA—ARMY 20130610 

2

10 U.S.C. §§ 880, 881, 886, 891, 907, 912a, 921, 930, and 934 (2012).2 The military 

judge sentenced appellant to a bad-conduct discharge, confinement for nine years 

and reduction to the grade of E-1. The convening authority, pursuant to a pretrial 

agreement, only approved only so much of the sentence that included a bad-conduct 

discharge, confinement for four months, and reduction to E-1. 

 Appellant’s case is now pending review before this court pursuant to Article 

66, UCMJ. Appellant raises numerous assignments of error, several of which merit 

discussion and relief. 

BACKGROUND 

In addition to his wrongful possession and use of marijuana and his repeated 

failures to report for duty, the gist of appellant’s misconduct involved: (1) reaching 

an agreement with two soldiers to break into other soldiers’ rooms in order to steal 

property; (2) repeatedly breaking into these rooms and stealing property; (3) 

reaching an agreement with a co-conspirator to remove evidence of the crimes; and 

(4) making false statements concerning his crimes. This misconduct generated seven 

other charges and nineteen specifications. 

LAW AND DISCUSSION 

1. Unreasonable Multiplication of Charges 

“What is substantially one transaction should not be made the basis for an 

unreasonable multiplication of charges against one person.” Rule for Courts-Martial 

307(c)(4). The prohibition against unreasonable multiplication of charges 

“addresses those features of military law that increase the potential for overreaching 

in the exercise of prosecutorial discretion.” United States v. Quiroz, 55 M.J. 334, 

337 (C.A.A.F. 2001); see also United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 

2012). In Quiroz, our superior court adopted five factors to guide our analysis of 

whether charges have been unreasonably multiplied: 

(1) Did the accused object at trial that there was an 

unreasonable multiplication of charges and/or 

specifications?; 

(2) Is each charge and specification aimed at distinctly 

separate criminal acts?; 

 

2

 A fifth specification of failure to go to place of duty was dismissed at trial. The 

convening authority disapproved the findings of guilty to three of the larceny 

specifications and dismissed those specifications, leaving two convictions for 

larceny. 
AYALA—ARMY 20130610 

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(3) Does the number of charges and specifications 

misrepresent or exaggerate the appellant’s criminality?; 

(4) Does the number of charges and specifications 

[unreasonably] increase the appellant’s punitive 

exposure?; and 

(5) Is there any evidence of prosecutorial overreaching or 

abuse in the drafting of the charges? 

55 M.J. 338-39 (internal quotation marks and citation omitted). 

a. Attempt to Remove Property to Prevent its Seizure and Obstruction of Justice; 

Conspiracy to Obstruct Justice and Solicitation to Remove Property to Prevent its 

Seizure

Appellant stands convicted of both an attempt to remove property to prevent 

its seizure under Article 80, UCMJ, and obstruction of justice pursuant to Article 

134, UCMJ for the same act—that is, a co-conspirator’s attempt to remove evidence 

of stolen items from appellant’s room. Appellate defense counsel asserts that these 

two convictions represent an unreasonable multiplication of charges (UMC). The 

government concedes this point and recommends we set aside the conviction for the 

Article 80 offense. 

While we accept this concession, we note that during the providence inquiry, 

the military judge did not identify this specification as an attempt to remove 

property to prevent its seizure, but rather as an offense alleging “attempted 

obstruction of justice.” He thereafter covered elements applicable to both of these 

underlying offenses enumerated in Article 134, UCMJ, but failed to list the terminal 

element and failed to cover the terminal element with appellant during the 

subsequent colloquy. This sequence of errors would have also led to our setting 

aside and dismissing the conviction for attempted removal of property to prevent 

seizure specification. See United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012); 

United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011); United States v. Inabinette, 66 

M.J. 320 (C.A.A.F. 2008). 

Appellant is also currently convicted of a conspiracy to obstruct justice and 

solicitation to remove property to prevent its seizure for the identical act of directing 

the same co-conspirator, Private (PVT) AC, to remove evidence from appellant’s 

room. Appellate defense counsel claims that these two convictions represent a UMC 

while the government contests this characterization. In deciding this issue in favor 

of appellant we find the second, third and fifth Quiroz factors weigh heavily in his 

favor. 
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Although appellant did not raise a UMC objection at trial and this additional 

Article 134 offense did not unreasonably increase his punitive exposure, these 

charges are aimed at the same criminal act and charging appellant twice for the exact 

same misconduct exaggerates his criminality under these circumstances. To the 

extent we have found three instances of UMC in appellant’s case, we also find that 

the prosecution overreached in drafting this particular charge sheet. We address this 

issue in our decretal paragraph by setting aside the finding and dismissing the 

Article 134, UCMJ offense of soliciting another to remove property to prevent its 

seizure. 

b. False Official Statements made at the same time to the same 

Noncommissioned Officer

As found in the stipulation of fact and adduced during the providence inquiry, 

Specifications 1 and 2 of Charge VI allege two separate false statements made by 

appellant’s accomplice, PVT AC, to Sergeant KF upon PVT AC being caught coming 

out of appellant’s room. Government counsel concedes that these two false official 

statements “were not distinct criminal acts for the purpose of [a] Quiroz analysis” 

and recommends merging these two specifications for findings. We agree with 

government counsel and will take appropriate action in our decretal paragraph. 

2. Adequacy of Providence Inquiry to Support Appellant’s Plea to Obstruction of 

Justice 

Appellate defense counsel challenges both Article 134, UCMJ, convictions, 

alleging the military judge failed to elicit an adequate factual basis to support 

appellant’s plea that his misconduct was either prejudicial to good order and 

discipline or service discrediting. Because we have already disposed of one of these 

specifications (the solicitation offense), we will limit our review to the remaining 

Article 134 offense of obstruction of justice. 

“During a guilty plea inquiry the military judge is charged with determining 

whether there is an adequate basis in law and fact to support the plea before 

accepting it.” Inabinette, 66 M.J. 320, 321–22 (citing United States v. Prater, 32 

M.J. 433, 436 (C.M.A. 1991)). “The providence of a plea is based not only on the 

accused’s understanding and recitation of the factual history of the crime, but also 

on an understanding of how the law relates to those facts.” United States v. Medina, 

66 M.J. 21, 26 (C.A.A.F. 2008). We review a military judge’s decision to accept a 

plea for an abuse of discretion by determining whether the record as a whole shows a 

“substantial basis in law or fact for questioning the [guilty] plea.” United States v. 

Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (citing Inabinette, 66 M.J. at 322. 

As we have recently noted in United States v. Knight, ARMY 20130432, 2015 

CCA LEXIS (Army Ct. Crim. App. 17 June 2015) (summ. disp.), it can be tempting 
AYALA—ARMY 20130610 

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to simply acknowledge some misconduct is intuitively, inherently, or per se 

prejudicial to good order and discipline or service discrediting. Appellate 

government counsel basically advocates we adopt this approach. However, it is well 

established that the terminal element “cannot be conclusively presumed from any 

particular course of action,” even deplorable behavior such as that charged and 

admitted to here. United States v. Phillips, 70 M.J. 161, 165 (C.A.A.F. 2011); see 

also Fosler, 70 M.J. 225, 229-31 (determining that an accused cannot be convicted 

under Article 134 only for committing the misconduct in question—that misconduct 

must also be proven to satisfy the terminal element). 

While appellant agreed that his conduct of trying to impede an investigation 

was prejudicial and discrediting, his “Yes, sir” response to a single “question[] put 

to him as to whether his conduct was prejudicial to good order and discipline or 

service discrediting” was a “‘mere conclusion[] of law recited by [him that is] 

insufficient to provide a factual basis for a guilty plea.’” United States v. Jordan, 

57 M.J. 236, 239 (C.A.A.F. 2002) (quoting United States v. Outhier, 45 M.J. 326, 

331 (C.A.A.F. 1996)). 

 In this case, the military judge did not elicit an adequate factual basis during 

the colloquy with appellant to support his plea that his effort to obstruct justice was 

either prejudicial to good order and discipline or service discrediting. The 

stipulation of fact similarly fails to satisfy the providency requirement for either 

clause of the terminal element. Compare United States v. Sweet, 42 M.J. 183, 185 

(C.A.A.F. 1995). 

Therefore, on the record before us, we find a substantial basis in fact to 

question appellant’s guilty plea to the Article 134 offense of obstruction of justice. 

CONCLUSION 

 The findings of guilty of the Specification of Charge II and Charge II are set 

aside, and that specification and charge are DISMISSED. 

The findings of guilty of Specifications 1 and 2 of Charge V and Charge V are 

set aside and those specifications and charge are DISMISSED. Furthermore, 

Specifications 1 and 2 of Charge VI are consolidated into a single amended 

specification to read as follows: 

In that [Appellant], U.S. Army, did, at or near Fort Polk, 

 Louisiana, on or about 28 December 2012, with the intent 

 to deceive, make to Sergeant K.F., U.S. Army, an official 

 statement, to wit: “the phones in the I-Phone box are mine,” 

 or words to that effect, and “I am getting hair clippers that 

 belong to me,” or words to that effect, in response to the 
AYALA—ARMY 20130610 

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 question, “what are you doing in this room,” which statement 

 was totally false and was then known by [Appellant] 

 to be so false. 

The findings of guilty of this consolidated specification of Charge VI and Charge VI 

are AFFIRMED. The finding of guilty of Specification 2, Charge VI is set aside and 

that specification is DISMISSED. 

The remaining findings of guilty are AFFIRMED. 

We are able to reassess the sentence on the basis of the errors noted, 

and do so after conducting a thorough analysis of the totality of circumstances 

presented by appellant’s case and in accordance with the principles articulated by 

our superior court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 

2013) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). 

In evaluating the Winckelmann factors, we find no dramatic change in the 

penalty landscape or exposure which might cause us pause in reassessing appellant’s 

sentence. Second, the gravamen of appellant’s misconduct remains the same. In 

addition, appellant was sentenced by a military judge and based on our experience 

we are familiar with the remaining offenses so that we may reliably determine what 

sentence would have been imposed at trial. 

After reassessing the sentence and the entire record, the sentence is 

AFFIRMED. We find this reassessed sentence is not only purged of any error 

but is also appropriate. All rights, privileges, and property, of which 

appellant has been deprived by virtue of that portion of the findings set aside 

by our decision, are ordered restored. 

Judge HAIGHT and Judge WEIS concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: