## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, HAIGHT, and WEIS 1

Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 JOSE I. AYALA United States Army, Appellant

ARMY 20130610

Headquarters, Joint Readiness Tr aining Center and Fort Polk Randall Fluke, M ilitary Judge

Colonel Samuel A. Schuber t, Staff Judge Advocate

For Appellant: Li eutenant Colonel Ch arles D. Lozano, JA ; Captain Aaron R. Inkenbrandt, JA; Captain Nichol as J. Larson, JA (on brief).

For Appellee: Colonel John P. Carrell, JA ; Major Daniel D. De rner, JA; Major A.G. Courie III, JA; Captain Jame s P. Curtin, JA (on brief).

22 July 2015

--------------------------------- MEMORANDUM OPINION

---------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.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 housebreak ing, conspiracy to obstruct justice, failure to go to place of duty (four specific ations), willfully disobeying a noncommissioned officer, false official statement (t hree specifications), wrongf ul possession of marijuana, wrongful use of marijuana (two specifications), larce ny (five specifications), housebreaking (five specifica tions), obstructing justice, and soliciti ng another to remove property to prevent its seizure, in violation of Articles 80, 81, 86, 91, 107, 112a, 121, 130, and 1 34, Uniform Code of Military Justice [hereinafter UCMJ],

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

2 10 U.S.C. §§ 880, 881, 8 86, 891, 907, 912a, 92 1, 930, and 934 (2012). 2 The military judge sentenced appellant to a bad-conduc t discharge, confinem ent for nine years and reduction to the grade of E-1. The convening authority, pursuant to a pretrial agreement, only appr oved only so much of the sent ence that include d a bad-conduct discharge, confinement for four months, and re duction to E-1.

Appellant’s case is now pending review before this court pursuant to Article 66, UCMJ. Appellant raises nu merous assignments of erro r, several of which merit

discussion and relief.

BACKGROUND

In addition to his wrongful possession and use of marijuan a and his repeated failures to report fo r duty, the gist of ap pellant’s misconduct in volved: (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 stea ling 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 ninete en specifications.

LAW AND DISCUSSION

1. Unreasonable Multip lication of Charges

“What is substantia lly one transaction should no t be made the basis for an unreasonable multiplication of charges against one person.” Rule fo r Courts-Martial 307(c)(4). The prohibition against un reasonable multiplic ation 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 multiplicati on of charges and/or specifications?;

(2) Is each charge and specif ication aimed at distinctly separate criminal acts?;

2 A fifth specification of fail ure to go to place of duty was dismissed at trial. The convening authority disappro ved the findings of guilty to three of the larceny specifications and dismisse d those specifications, le aving two convictions for larceny.AYALA—ARMY 20130610

3 (3) Does the number of ch arges and specifications misrepresent or exaggerate the appellant’s criminality?;

(4) Does the number of ch arges 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 quotati on marks and citation omitted).

a. Attempt to Remove Property to Prevent its Seizure and Obstruction of Justice; Conspiracy to Obstruct Jus tice and Solicitation to Remo ve Property to Prevent its
Seizure

Appellant stands convicted of both an attempt to re move property to prevent its seizure under Article 80, UCMJ, and obstructi on of justice pursuant to Article 134, UCMJ for the same act—that is, a co -conspirator’s attempt to rem ove evidence

of stolen items from appellant’s room. Appellate de fense counsel asse rts that these two convictions repres ent an unreasonable multiplicat ion of charges (UMC). The government concedes this po int and recommends we set as ide the conviction for the

Article 80 offense.

While we accept this concession, we no te 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 cove red elements applicable to both of these underlying offenses enumerated in Article 134, UCMJ, but fa iled to list the terminal

element and failed to cover the termin al element with appellant during the subsequent colloquy. This se quence of errors would have also led to our setting aside and dismissing the conviction for a ttempted removal of pr operty 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 eviden ce from appellant’s room. Appellate defense couns el claims that these two convictions re present a UMC while the government contests this characteriz ation. In deciding this issue in favor of appellant we find the second, thir d and fifth Quiroz factors weigh heavily in his

favor.AYALA—ARMY 20130610

4 Although appellant did not ra ise a UMC objection at trial and this additional

Article 134 offense did not unreasonably increase his punitive e xposure, these charges are aimed at the same criminal ac t and charging appellant twice for the exact same misconduct exaggerates his criminality under thes e 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 shee t. We a ddress this issue in our decretal pa ragraph by setting aside the finding an d 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 a nd adduced during the providence inquiry, Specifications 1 and 2 of Ch arge VI allege two separate false statements made by appellant’s accomplice, PVT AC, to Sergean t KF upon PVT AC being caught coming out of appellant’s room. G overnment counsel concedes th at these two false official

statements “were not distinct crim inal acts for th e purpose of [a] Quiroz analysis” and recommends merging these two specifications for fi ndings. We agree with government counsel and will take appropriate action in our decretal paragraph.

2. Adequacy of Providence In quiry to Support Ap pellant’s Plea to Obstruction of

Justice

Appellate defense counsel challenges both Article 134, UCMJ, convictions, alleging the milit ary judge failed to elicit an ad equate factual ba sis to support appellant’s plea that his misconduct was either prej udicial to good order and discipline or service discredi ting. Because we have alrea dy disposed of one of these specifications (the solicitati on offense), we will limit our review to the remaining

Article 134 offense of obstruction of justice.

“During a guilty plea inquir y the military judge is ch arged with determining whether there is an adequa te basis in law and fact to support th e 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 provid ence of a plea is ba sed not only on the accused’s understanding and recitation of th e 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 j udge’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 fo r 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 2 015) (summ. disp.), it can be temptingAYALA—ARMY 20130610

5 to simply acknowledge some misconduct is intuitively , inherently, or per se prejudicial to good order and discipline or service discrediting. Appellate government counsel basically ad vocates we adopt this approach. However, it is well

established that the terminal element “can not be conclusively presumed from any particular course of action,” even deplor able 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 (det ermining that an accu sed 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 discrediti ng, his “Yes, sir” response to a single “question[] put

to him as to whether his co nduct was prejudicia l to good order an d 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 elic it an adequate fa ctual basis during the colloquy with appellant to support his plea that his effo rt to obstruct justice was either prejudicial to good order and discipline or se rvice discrediting. The stipulation of fact similarl y fails to satisfy the provid ency 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 be fore us, we find a substantial basis in fact to question appellant’s gu ilty plea to the Article 134 offense of obst ruction 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 an d 2 of Charge V and Charge V are set aside and those specifications and charge are DISMISSE D. 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 De cember 2012, with the intent to deceive, make to Sergeant K.F., U.S. Army, an official statement, to wit: “the phon es in the I-Phone box are mine,”

or words to that e ffect, and “I am getting hair clippers that belong to me,” or words to th at effect, in re sponse to theAYALA—ARMY 20130610

6 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 an d 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 cond ucting a thorough anal ysis 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 re assessing appellant’s sentence. Second, the gravamen of appe llant’s misconduct rema ins the same. In addition, appellant was sent enced by a military judge an d based on our experience

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

sentence would have be en imposed at trial.

After reassessing the sent ence and the entire re cord, the sentence is

AFFIRMED. We find this re assessed sentence is not only purged of any error but is also appropriate. All rights, privileges, and pr operty, 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: