United States Navy-Marine Corps

Court of Criminal Appeals

_________________________

UNITED STATES

Appellee

v.

Hugo J. SPINOZA

Lieutenant, (O-3), U.S. Navy

Appellant

_________________________

No. 201700236

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Argued: 13 August 2018—Decided: 4 February 2019

_________________________

Military Judges:

Captain Beth Payton-O’Brien, JAGC, USN (arraignment); 

Captain Paul C. Leblanc, JAGC, USN (trial).

Approved Sentence: Dismissal and a reprimand.1 Sentence adjudged

21 March 2017 by a general court-martial convened at Naval Station 

San Diego, California, consisting of officer members.

For Appellant:

Major Maryann N. McGuire, USMC (argued).

For Appellee:

Captain Luke Huisenga, USMC (argued); 

Major Kelli A. O’Neil, USMC (on brief).

_________________________

 

1 In our decretal paragraph, we disapprove the reprimand.
United States v. Spinoza, No. 201700236

2

This opinion does not serve as binding precedent, 

but may be cited as persuasive authority under 

NMCCA Rule of Practice and Procedure 30.2

_________________________

Before WOODARD, TANG, and HITESMAN,2

Appellate Military Judges

TANG, Judge:

A general court-martial convicted the appellant, contrary to his pleas, of 

stalking, assault, communicating a threat, fraternization, and unlawful entry 

in violation of Articles 120a, 128, and 134, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. §§ 920a, 928, and 934. After findings, the military judge 

conditionally dismissed the assault and communicating a threat charges as 

unreasonably multiplied with the stalking charge.3 The panel sentenced the 

appellant to a reprimand and a dismissal. The convening authority approved 

the adjudged sentence and, except for the dismissal, ordered it executed.

The appellant asserts three assignments of error, which we have reordered: (1) the evidence is factually insufficient for his unlawful entry conviction; (2) the evidence is factually insufficient for his stalking conviction; and 

(3) his defense counsel were ineffective for failing to seek suppression of 

evidence from his cell phone. We disagree. Additionally, although not raised 

by the parties, we note multiple errors in the Court-Martial Order (CMO). 

After careful consideration of the entire record, and in the interest of judicial 

economy, we will take appropriate action in our decretal paragraph. 

I. BACKGROUND

In July 2015, the appellant, a commissioned officer, met Sonar Technician 

Surface Third Class (STG3) AI while working as an Uber driver. He subsequently engaged in two separate consensual sexual encounters with her even 

though he knew she was a junior enlisted Sailor. In August 2015, while out 

drinking with STG3 AI, the appellant became heavily intoxicated. After 

STG3 AI helped the appellant back to his residence, she claims he sexually 

assaulted her.4

 

2 Senior Judge Jones participated in the oral argument. However, final action 

was not taken in this case until after he detached from the court. 

3 Appellate Exhibit (AE) XXVII; Record at 996-98. 

4 The appellant was acquitted of this charge.
United States v. Spinoza, No. 201700236

3

The Naval Criminal Investigative Service (NCIS) opened an investigation 

into the alleged sexual assault. On 9 September 2015, Special Agent M

sought and received a Command Authorization for Search and Seizure 

(Command Authorization) of: (1) the appellant’s cell phone for digital evidence of his improper relationship with STG3 AI; and (2) his person for his 

DNA.5 Later that same day, Special Agent M interrogated the appellant.6

Near the end of the interview, knowing that he had already secured the 

Command Authorization, Special Agent M sought consent from the appellant 

to search his phone. Special Agent M told the appellant, “Because your 

primary method of communication with [STG3 AI] was through your phone

. . . I’d like to go through your phone, and search your phone . . . and conduct 

a thorough search.”7 The appellant asked “Are you just going to look at text 

messages between [STG3 AI] and I or―”8 Special Agent M responded:

I’m going to look for digital evidence of your relationship. 

Everything from . . . the Uber app when you guys met, to refine 

down when that happened, to anything that pertains to the investigation. But your phone is going to hold digital evidence of 

your communications with her and all those things.9

The appellant replied, “That’s fine.”10 After he orally consented to a 

search of his phone, the appellant signed a Permissive Authorization for 

Search and Seizure form (Permissive Authorization).

After digital extraction of the appellant’s phone proved unsuccessful, 

NCIS investigators conducted a manual review of the phone. During the 

review, investigators took over 140 screen shots of text message conversations between the appellant and ten other women. These conversations 

occurred during the same time period of the appellant’s interactions with 

STG3 AI—July to September 2015. None of the texts were responsive to the 

allegations of sexual assault made by STG3 AI. But the texts did describe the 

 

5 The Command Authorization did not explicitly incorporate Special Agent M’s 

request to search the appellant’s cell phone, as Special Agent M had detailed in his 

supporting affidavit. However, we need not evaluate the validity of the Command 

Authorization because the appellant consented to a search of his cell phone. 

6 The video recording of this interview was entered into evidence as Prosecution 

Exhibit (PE) 13. 

7 PE 13 at 39:55.

8 Id. at 40:20.

9 Id. at 40:23.

10 Id. at 40:40.
United States v. Spinoza, No. 201700236

4

appellant’s aggressive sexual behavior, his behavior while intoxicated, and 

his use of Uber customer information for personal purposes. The investigators used the information gleaned from the texts to identify and interview 

two women, LTJG MM and SM.

The appellant met LTJG MM through mutual friends, and the two socialized in group settings. One evening in April or May 2014, the appellant 

showed up uninvited at LTJG MM’s apartment where she was hosting a 

party for a friend. LTJG MM did not invite the appellant into her apartment 

but told him she would see him later at some local bars she planned to

patronize with her friends. But when the appellant approached LTJG MM at 

one of the bars that night, she gave him, as she termed it, the cold shoulder. 

Ultimately, LTJG MM returned to her apartment with another man she met 

that evening. The two retired to her bedroom. Sometime later, the appellant 

burst into LTJG MM’s apartment and rushed up the stairs toward LTJG 

MM’s bedroom. LTJG MM’s roommate, a female junior Naval Officer, tried 

blocking the appellant from getting into LTJG MM’s room, but he kept trying 

to push past her. The appellant was very angry that LTJG MM was in bed 

with the man. He repeatedly yelled at her, calling her a “slut[,] and a bitch[,]

and a whore.”11 The two women and LTJG MM’s male companion responded 

by repeatedly yelling and cursing at the appellant to leave. Finally, the 

appellant “stormed out of the apartment.”12 Both women testified the incident terrified them.

The NCIS investigators identified SM from a text the appellant had sent 

her apologizing for his behavior while intoxicated. When interviewed by 

NCIS, SM related that she had engaged in a “casual romantic relationship”

with the appellant from June through August of 2015, and that he assaulted 

her in July 2015.13 SM told investigators that she had been walking down the 

street with another man when the appellant saw her and aggressively 

grabbed her arm, trying to pull her away from her date, and told her in a loud 

voice that she had to go home with him. SM’s date came to her defense. 

Eventually, nearby police intervened to separate the appellant and SM’s 

date. SM testified the incident left her “scared and nervous.”14 But the 

appellant was not done.

 

11 Record at 446.

12 Id. at 459.

13 Id. at 740.

14 Id. at 742.
United States v. Spinoza, No. 201700236

5

Over the rest of the night and into the morning, the appellant called and

texted SM more than thirty times. Among other things, he called her vile 

names, threatened to tell her son she was a “whore,” and threatened to break 

a window in her house and kill whomever she was in bed with. His threats 

left SM horrified and shaking. At one point, she texted the appellant warning 

him not to come to her house or she would call the police. SM finally went 

home around 2:30 a.m. Soon thereafter, the appellant showed up and began 

yelling at her and pounding on her door trying to get her to talk to him.

Ultimately, he left—but only after SM pacified him by agreeing to see him 

again. 

Additional facts necessary to resolution of the AOEs are included below.

II. DISCUSSION

A. Factual Sufficiency

The appellant asserts his convictions for unlawful entry and stalking are 

factually insufficient. We disagree.

We review questions of factual sufficiency de novo. Art 66(c), UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual 

sufficiency is whether “after weighing the evidence in the record of trial and 

making allowances for not having personally observed the witnesses, [this 

court is] convinced of appellant’s guilt beyond a reasonable doubt.” United 

States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (citation, internal quotation marks, and emphasis omitted). In conducting this unique appellate 

function, we take “a fresh, impartial look at the evidence,” applying “neither 

a presumption of innocence nor a presumption of guilt” to “make [our] own 

independent determination as to whether the evidence constitutes proof of 

each required element beyond a reasonable doubt.” Washington, 57 M.J. at

399. Proof beyond a reasonable doubt does not mean, however, that the 

evidence must be free from conflict. United States v. Goode, 54 M.J. 836, 841 

(N-M. Ct. Crim. App. 2001).

1. Unlawful entry

The appellant was convicted of unlawfully entering LTJG MM’s residence 

in violation of Article 134, UCMJ. The government was required to prove:

(1) That the appellant entered the dwelling house of LTJG 

MM; 

(2) That such entry was unlawful; and
United States v. Spinoza, No. 201700236

6

(3) That, under the circumstances, the conduct of the appellant was of a nature to bring discredit upon the armed forces.15

The appellant does not dispute that he entered the dwelling house of 

LTJG MM. Instead, he argues his entry was neither unlawful nor service 

discrediting.

“An entry is ‘unlawful’ if made without the consent of any person authorized to consent to entry or without other lawful authority.”16 The appellant 

contends his entry was lawful because he entered LTJG MM’s apartment to 

prevent a crime—the sexual assault of a drunken LTJG MM by her male 

companion. This claim is not supported by the record. Both LTJG MM and 

her roommate testified that LTJG MM only consumed a few drinks that 

entire evening and was not overly intoxicated. More importantly, the record 

shows the appellant acted out of possessiveness and rage, not concern for 

LTJG MM’s well-being. After repeatedly being told to get out of LTJG MM’s 

apartment, he yelled at her, calling her “a slut and a bitch and a whore”

before eventually leaving.17 We conclude from these statements that the 

appellant’s motive in unlawfully entering LTJG MM’s apartment was jealousy and not to protect her from a sexual assault.

The appellant next avers his actions were not service discrediting because 

“[t]here is no evidence [his] conduct ever made its way into the public domain.”18 This is factually incorrect. LTJG MM’s male companion was a 

civilian. Regardless, our superior court has held that, when proving that 

conduct is service discrediting, public awareness of the conduct is not always 

required.

[E]vidence that the public was actually aware of the conduct is not necessarily required. Furthermore, proof of the conduct itself may be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that, under all the circumstances, it was of a nature to bring discredit upon the armed 

forces. 

United States v. Phillips, 70 M.J. 161, 163 (C.A.A.F. 2011) (emphasis in 

original).

 

15 10 U.S.C. § 934; MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.) 

(MCM), Part IV, ¶ 111.b; AE CIII at 9; Charge Sheet.

16 MCM, Part IV, ¶ 111.c.

17 Record at 446.

18 Appellant’s Brief of 5 Jan 2018 at 46.
United States v. Spinoza, No. 201700236

7

Here, the appellant unlawfully entered LTJG MM’s home in the middle of 

the night. He shoved past LTJG MM’s roommate to get to LTJG MM, eventually bursting into her bedroom. He refused to leave the home and shouted 

profanities. We concur with the government that this “vulgar, terrifying 

violation of a female officer’s privacy is the sort of gross personal misconduct 

the very nature of which is service discrediting.”19 After weighing all the 

evidence and making allowances for not having personally observed the 

witnesses, we are convinced beyond a reasonable doubt that the appellant is 

guilty of unlawful entry.

2. Stalking

The appellant was convicted of stalking SM in violation of Article 120a, 

UCMJ. The government was required to prove:

(1) That the appellant wrongfully engaged in a course of 

conduct directed at SM that would cause a reasonable person to 

fear bodily harm, to wit: unlawfully grabbing SM on the arm 

with his hand, sending her text messages threatening to break 

into her home, and going to her home and attempting to enter 

it;

(2) That the appellant knew or reasonably should have 

known that SM would be placed in a reasonable fear of bodily 

harm; and

(3) That the appellant’s acts did induce SM to feel reasonable fear of bodily harm. 20

The appellant asserts that the government failed to prove any of the three 

elements.

The appellant contends the government did not prove the first element 

because there was no evidence he attempted to enter SM’s home. While the 

appellant did repeatedly bang on her door, yell at her to come outside and 

talk to him, and called her on the phone, we agree that there is no evidence in 

the record that he ever attempted to enter the home. Accordingly, we disapprove the finding of guilty to the language “and attempting to enter it.” We 

will take appropriate action on this language in our decretal paragraph. 

Even with this exception, we still find that the government proved beyond 

a reasonable doubt the first element—that the appellant engaged in a course 

 

19 Appellee’s Brief of 15 May 2018 at 38.

20 10 U.S.C. § 920a; MCM, Part IV, ¶ 45a.b.; AE CIII at 5; Charge Sheet.
United States v. Spinoza, No. 201700236

8

of conduct directed at SM that would cause a reasonable person to fear bodily 

harm. A course of conduct includes “a repeated conveyance of verbal threats, 

written threats, or threats implied by conduct, or a combination of such 

threats, directed at or towards a specific person.”21 And “[t]he term ‘repeated,’

with respect to conduct, means two or more occasions of such conduct.”22

Here, the appellant accosted SM while she was on a date with another man, 

grabbed her arm, and escalated the confrontation to the point that law 

enforcement officials had to intervene. He repeatedly sent her text messages 

threatening to break her window, and to break into her home and kill whomever she was with. Further, he then traveled to her home, beat on her door,

and yelled at her. SM testified she was “terrified,” and “shaking” because she 

“[a]bsolutely” feared the appellant was going to hurt her.23 We conclude her 

fear of bodily harm was reasonable.

The appellant also asserts the government failed to prove the second element—that the appellant knew, or should have known, that his actions 

would place SM in reasonable fear of bodily harm. The appellant makes three 

assertions. First, he claims that the misspellings in his texts that night prove 

he was so drunk he did not know—or could not have known—the consequences of his actions. We disagree. His course of conduct spanned several 

hours. The content of his threatening texts, his behavior at SM’s home, and

his later expressions of remorse all show the appellant knew or should have 

known the consequences of his actions towards SM. Second, the appellant 

claims that because he had been engaged in a relationship with SM, his 

actions could not cause SM to reasonably fear him. And third, the appellant 

avers that SM was only concerned for the safety of her son and nephew, who 

were present in the home, not her own safety. We reject these claims as not 

supported by the record. 

Finally, the appellant argues that the government failed to prove the 

third element—that SM actually feared bodily harm. He claims that because 

SM used profanity directed at him that night, never called the police, eventually went to sleep, and continued to correspond with him after the incident, 

she did not fear him. But SM testified to the contrary—that the appellant’s 

actions toward her caused her to be “terrified,” and “shaking” because she 

“absolutely feared the appellant was going to hurt her.”24 In fact, their 

encounter began with the appellant assaulting her by grabbing her arm in 

 

21 MCM, Part IV, ¶ 45a.(b)(1)(B).

22 Id. at ¶ 45a.(b)(2).

23 Record at 745.

24 Record at 745.
United States v. Spinoza, No. 201700236

9

downtown San Diego, and then the appellant texted SM, before arriving at 

her house, that three of his friends died that week and he hoped she would 

suffer the same misfortune. We find SM’s testimony compelling and supported by the evidence in the record. After weighing all the evidence and making 

allowances for not having personally observed the witnesses, we are convinced beyond a reasonable doubt that the appellant is guilty of stalking SM.

B. Ineffective Assistance of Counsel

The appellant next claims that he received ineffective assistance of counsel because his trial defense counsel failed to seek suppression of evidence 

obtained from his cell phone. Specifically, the appellant claims his counsel 

were deficient because he claims a suppression motion would have resulted in 

the exclusion of all evidence that related to the offenses of stalking SM, 

assaulting SM, and threatening SM. The appellant makes this claim because 

NCIS agents had no knowledge of the appellant’s relationship with SM before 

they searched the appellant’s cell phone. After reading the appellant’s messages with SM, agents interviewed her. SM described her relationship with 

the appellant and his offenses, and she provided screenshots of threatening 

messages the appellant sent her. Those messages, which were not found on 

the appellant’s phone, were later admitted at trial. We do not find the counsel 

were ineffective.

We review claims of ineffective assistance of counsel de novo. United 

States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015). The appellant bears the 

burden and must clear “a high bar” to prevail on such a claim. Id. at 371. He 

must show: (1) that his counsel’s performance was deficient and (2) that, but 

for his counsel’s deficient performance, there is a reasonable probability that 

the result of the proceeding would have been different. Id. (citing Strickland 

v. Washington, 466 U.S. 668, 688, 694 (1984)).

When a claim of ineffective assistance of counsel arises from counsel’s 

failure to move to suppress evidence, the appellant must show: (1) “that there 

is a reasonable probability that such a motion would have been meritorious;”

and (2) “that there is a reasonable probability that the verdict would have 

been different absent the excludable evidence.” United States v. Harpole, 77 

M.J. 231, 236 (C.A.A.F. 2018) (internal quotations omitted) (citing United 

States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001); United States v. 

Loving, 41 M.J. 213, 244 (C.A.A.F. 1994) (internal citations omitted)). Under 

the circumstances of this case, the appellant prevails only if he can show the 

military judge would have suppressed the results of the cell phone search—

holding that neither the command authorization nor the appellant’s consent 

justified the search—and he must show that the military judge would also 
United States v. Spinoza, No. 201700236

10

have prohibited SM’s live witness testimony and admission of the text messages from her cell phone.25 We find the appellant’s claim of error fails.

1. The scope of appellant’s consent to search

The Fourth Amendment guarantees “[t]he right of the people to be secure 

in their persons, houses, papers, and effects, against unreasonable searches 

and seizures . . . .” U.S. CONST. amend IV. A warrantless search is “per se 

unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 

U.S. 347, 357 (1967). Voluntary consent to search is one exception to the 

warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

A person giving consent to search may limit his consent by placing limitations on “time, place, or property.” MILITARY RULE OF EVIDENCE 314(e)(2), 

MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.). A person may also 

limit the scope of consent to search. However, the onus is on the appellant to 

expressly limit the scope of his consent. Limitations will not be inferred, and 

the appellant’s subjective intent does not control. See United States v. Wallace, 66 M.J. 5, 8 (C.A.A.F. 2008). “The scope of a search is generally defined 

by its expressed object.” Florida v. Jimeno, 500 U.S. 248, 251 (1991) (quoting 

United States v. Ross, 456 U.S. 798, (1982)). The scope of consent is determined by “objective reasonableness,” asking “what would the typical reasonable person have understood by the exchange between the officer and the 

suspect?” Id. at 251 (internal quotations and citations omitted). A person may 

withdraw consent “at any time.” MIL. R. EVID. 314(e)(2). However, the law 

enforcement official is “entitled to clear notice that this consent has been 

withdrawn.” United States v. Stoecker, 17 M.J. 158, 162 (C.M.A. 1984). The 

appellant, through counsel, withdrew consent on 30 October 2015—after 

Special Agent M had already manually searched his cell phone.26

The appellant further contends he limited the scope of his consent to “his 

communications” with STG3 AI and information from the Uber application.27

We disagree. 

When Special Agent M asked the appellant for consent to search his cell 

phone, he told the appellant he intended to conduct a “thorough search.”28

 

25 The government did not present any text messages from the appellant’s cell 

phone. The government’s case was based on SM’s testimony and text messages she 

provided from her cell phone.

26 Appellant’s Motion to Attach, Appendix at 10.

27 Appellant’s Brief of 5 Jan 2018 at 16.

28 Id. at 40:23.
United States v. Spinoza, No. 201700236

11

The appellant specifically asked, “Are you just going to look at text messages 

between [STG3 AI] and I or―” to which Special Agent M responded, that he 

intended to look for “digital evidence” of their relationship, including information in the Uber application and “anything that pertains to the investigation.” 

At that time, the investigation related to the appellant’s actions in using 

his position as an Uber driver to meet STG3 AI, cultivating an improper but 

consensual sexual relationship with her, and ultimately allegedly sexually 

assaulting her after he became belligerently drunk in public. At no time did 

Special Agent M state he would only review communications between the 

appellant and STG3 AI. Nor did the appellant, a Lieutenant and a graduate 

of the United States Naval Academy, ever expressly limit his consent to just 

the search of his phone for his messages with STG3 AI or his Uber application. After this exchange, the appellant completed a written consent form, 

authorizing Special Agent M to search his cell phone in relation to an investigation into “Article 120.” Further, when completing the consent form, he did 

not write any limitations on the consent form.

It was within the scope of the appellant’s consent, therefore, for Special 

Agent M to look for any witnesses who may have been present with the 

appellant and STG3 AI on the night of the alleged sexual assault. The record 

indicates STG3 AI kept trying to find the appellant’s friends when she 

encountered him intoxicated in public in downtown San Diego. It was also

reasonable for Special Agent M to search for any statements the appellant 

may have made to others about his relationship with STG3 AI or her allegation of sexual assault. Such statements could be consistent or inconsistent 

with his statements to NCIS, and could be inculpatory or exculpatory.

Although the appellant claims Special Agent M engaged in a general 

search, “indiscriminately rummag[ing]” though the appellant’s cell phone, 

Special Agent M’s reporting indicates he confined his search to the timeframe 

of the appellant’s relationship with STG3 AI. The appellant submitted to this 

court Special Agent M’s report documenting his review of the appellant’s cell 

phone.29 All entries describe messages sent between July 2015 and September 2015.30 The appellant was convicted of having an improper relationship 

with STG3 AI beginning in July 2015, and STG3 AI accused him of sexually 

assaulting her on 1 August 2015. All screenshots of text messages with SM 

were dated in July and early August 2015. The screenshots were arranged in 

reverse chronological order, the way they would have been presented in the 

 

29 Appellant’s Motion to Attach, Enclosure (3), at 9-10.

30 Id. 
United States v. Spinoza, No. 201700236

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appellant’s cell phone. The screenshots contained messages indicating a

possible romantic and sexual relationship between the appellant and SM and 

showed that SM felt “insecure” about the idea of sleeping with the appellant.31 Conducting an “ex post reasonableness” analysis, we find Special 

Agent M’s search to be reasonable within the scope of the appellant’s consent.

United States v. Richards, 76 M.J. 365, 370 (C.A.A.F. 2017).

Having determined that Special Agent M’s search of the appellant’s cell 

phone was conducted within the scope of the appellant’s consent, we need not 

evaluate the validity of the Command Authorization. Even assuming arguendo, the trial defense counsel could have successfully moved the court to 

suppress the search of the appellant’s cell phone—rejecting both the Command Authorization and the appellant’s consent as bases for the search—it 

does not follow that the court would also suppress the testimony of SM and 

disallow presentation of evidence from her cell phone.

2. Suppression of live witness testimony

The appellant’s counsel argues that if trial defense counsel moved to suppress the search of the appellant’s cell phone, there would be no evidence to 

support three of the specifications, necessarily resulting in acquittal for 

stalking, assault, and communicating a threat.32 We disagree. 

If a military judge suppresses evidence as a result of a Fourth Amendment violation, the judge must determine whether derivative evidence must 

likewise be suppressed. The general test is whether the taint of the initial 

illegality has been sufficiently attenuated. The Supreme Court elucidated the 

test for fruit of the poisonous tree in Wong Sun v. United States as: “whether, 

granting establishment of the primary illegality, the evidence . . . has been 

come at by exploitation of that illegality or instead by means sufficiently 

distinguishable to be purged of the primary taint.” 371 U.S. 471, 488 (1963) 

(internal quotations and citation omitted). MILITARY RULE OF EVIDENCE 311 

governs military practice and contains our exclusionary rule, which excludes 

evidence if “exclusion . . . results in appreciable deterrence of future unlawful 

searches or seizures and the benefits of such deterrence outweigh the costs to 

the justice system.” 

 

31 Id., Enclosure (4), at 58.

32 Although the appellant was convicted of stalking, assault and battery, and 

communicating a threat, all in relation to SM, the military judge conditionally 

dismissed the specifications alleging assault and battery and communicating a threat 

on the basis that they constituted an unreasonable multiplication of charges with 

stalking.
United States v. Spinoza, No. 201700236

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When evaluating whether witness testimony must be suppressed as fruit 

of an illegal search, the court must apply the factors described by the Supreme Court in United States v. Ceccolini. 435 U.S. 268 (1978). The test is not 

but-for causation. See id. at 275. “Witnesses are not like guns or documents 

which remain hidden from view until one turns over a sofa or opens a filing 

cabinet.” Id. at 276. 

In evaluating whether witness testimony should be suppressed as fruit of 

the poisonous tree, the court must consider: 

(1) The “degree of free will exercised by the witness,” examining whether 

the witness testified of her own free will or whether her testimony was 

“coerced or even induced by official authority” as a result of the illegal search.

Ceccolini, 435 U.S. at 276, 279.

(2) Whether “[s]ubstantial periods of time elapsed between the time of the 

illegal search and the initial contact with the witness, on the one hand, and 

between the latter and the testimony at trial on the other;” Id. at 279.

(3) Whether illegally seized evidence was used to question the witness; Id.

(4) Whether the law enforcement officer deliberately conducted an illegal 

search; See id. at 280.33

(5) And the court must weigh the “cost of permanently silencing” the witness balanced against the deterrent effect against law enforcement misconduct. Id. at 280.

In assessing these factors, we find it unlikely that the military judge 

would have suppressed SM’s testimony even if he had suppressed the results 

of the search of the appellant’s cell phone. First, SM testified out of her own 

free will. In fact, SM told NCIS agents the appellant contacted her even 

before NCIS agents interviewed her. The appellant informed her she was free 

not to cooperate with law enforcement. Not only did she elect to submit to an 

interview, she revealed the appellant’s prior contact with her. Second, nearly 

three months passed between the search of the appellant’s phone and SM’s 

first interview with NCIS in December 2015, and an even longer period of 

 

33 Our sister service courts have summarized this factor as the “purpose and flagrancy” of the law enforcement conduct. See United States v. Jones, 64 M.J. 596 (A. 

Ct. Crim. App. 2007), United States v. Mancini, No. 38783, 2016 CCA LEXIS 660 

(A.F. Ct. Crim. App. 7 Nov 2016) (unpub. op.). The Supreme Court evaluated whether 

the law enforcement agent “entered the shop or picked up the envelope with the 

intent of finding tangible evidence bearing on an illicit gambling operation,” or with 

“the intent of finding a willing and knowledgeable witness to testify against respondent.” Ceccolini, 435 U.S. at 280. 
United States v. Spinoza, No. 201700236

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time until she testified at trial on 15 March 2017.34 Third, the agents did not 

confront SM with the threatening text messages that were ultimately admitted at trial as Prosecution Exhibit 11A—the threatening text messages were 

not found on the appellant’s cell phone, but rather on SM’s cell phone. The 

NCIS report documenting the agents’ interview with SM does not indicate 

that they showed SM any messages at all, but shows that they interviewed 

her and that she gave them screenshots of her messages with the appellant.35

Having found the search was validly conducted within the scope of the 

appellant’s consent, we conclude there is no flagrant police misconduct. 

Finally, conducting a cost-benefit analysis, we do not believe any possible 

good resulting from “permanently silencing” SM justifies any theoretical 

deterrent effect. Accordingly, we do not believe the trial outcome would have 

been different if the trial defense counsel had raised this motion. Therefore, 

we find the appellant’s claim of ineffective assistance of counsel fails. 

C. Sentence Reassessment

Having disapproved language in Charge III, Specification 1, we must now 

consider whether we can reassess the sentence. United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013); United States v. Moffeit, 63 M.J. 40, 

41-42 (C.A.A.F. 2006); United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 

1986). After analyzing the four factors laid out by our superior court in 

Winckelmann, we can confidently and reliably determine that the appellant’s 

sentence would still include a dismissal and a reprimand.

Although, we believe that the appellant’s sentence of a dismissal and letter of reprimand are appropriate, in the interest of judicial economy, we 

nonetheless disapprove the letter of reprimand in our decretal paragraph. We 

do so because the letter of reprimand issued to the appellant by the convening authority references the disapproved language contained in Charge III, 

Specification 1.36

 

34 Both time periods are longer than those in United States v. Richards, 2016 

CCA LEXIS 285 at *41 (A.F. Ct. Crim. App. 2 May 2016) (unpub. op.) (affirming the 

military judge’s denial of a defense motion to suppress live witness testimony when 

the witness was first contacted 26 days after an illegal search and testified “over a 

year later.”). See also United States v. Mancini, 2016 CCA LEXIS 660 at *33-34 (A.F. 

Ct. Crim. App. 7 Nov 2016) (unpub. op.) (finding a military judge would not have 

excluded live witnesses’ testimony when witnesses testified of “their own free will” 

“over a year after they were identified.”)

35 See AE XIX, Enclosure (B).

36 Specifically, the letter stated, in pertinent part, “Your misconduct consisted of 

wrongfully engaging in a course of conduct towards a civilian that included unlawful-
United States v. Spinoza, No. 201700236

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D. Errors in Promulgating Order 

An appellant is entitled to an official record accurately reflecting the results of his proceedings. United States v. Crumpley, 49 M.J. 538, 539 (N-M. 

Ct. Crim. App. 1989). We test error in court-martial orders under a harmlesserror standard. Id.

At a minimum, a court-martial promulgating order must contain the following information: (1) the type of court-martial and the convening command; 

(2) a summary of all charges and specifications on which the appellant was 

arraigned; (3) the appellant’s pleas; (4) the findings or disposition of all 

charges and specifications on which the appellant was arraigned; (5) if adjudged, the sentence; and (6) a summary of the action taken by the CA in the 

case. R.C.M. 1114(c)(1).

Although not raised as error, we note that the promulgating order is incorrect in the following ways: 

(1) It refers to the charges and specifications based on the numbering reflected in the amended cleansed charge sheet37 rather than the charges and 

specifications as numbered in the charge sheets at the time the appellant was 

arraigned. 

(2) It fails to reflect all charges and specifications on which the appellant 

was arraigned and entered pleas. The appellant entered pleas of not guilty to 

all charges and specifications.

(3) It fails to reflect the merger, consolidation, and dismissal of several 

charges and specifications which the military judge found to be an unreasonable multiplication of charges for findings. Based upon this ruling, the military judge dismissed Charge II, Specification 2, Charge IV, Specification 1, 

and Additional Charge I and its sole specification. The military judge merged

the operative language of these offenses into a new consolidated sole specification of Charge II alleging the appellant’s aggravated sexual contact against 

STG3 AI.38

 

ly grabbing her arm, threatening her and another individual, and attempting to 

enter her home, thereby inducing a reasonable fear of bodily harm.” Punitive Letter 

of Reprimand of 17 Jul 2017. 

37 AE CIV.

38 The consolidated specification read: “In that Lieutenant Hugo J. Spinoza, U.S. 

Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San 

Diego, California, on or about 1 August 2015, commit sexual contact upon STG3, A.I., 

U.S. Navy, to wit: biting STG3 A.I.’s lower lip, neck, and nipple with his mouth, 

strangling STG3 A.I.’s neck with his hand until she lost consciousness, and biting 
United States v. Spinoza, No. 201700236

16

(4) It fails to state that after findings the military judge conditionally 

dismissed Charge IV, Specification 2 and Charge VI, Specification 1, finding 

them to be an UMC for sentencing with Charge III, Specification 1. 

(5) It does not correctly reflect the members’ finding on the sole specification of Additional Charge II, for which the members excepted the word 

“March” and substituted the words “on or about May.”

(6) Finally, it does not reflect that the appellant was arraigned on and entered pleas of not guilty to the sole specification of Charge I and Charge III, 

Specification 2. Nor does it reflect that the military judge entered findings of 

not guilty to these offenses pursuant to R.C.M. 917.39

The failure to reflect the omitted information in the promulgating order

was error; however, the error was harmless as it did not materially prejudice 

the appellant’s substantial rights. To ensure the appellant has an official 

record which accurately reflects his proceedings, in our decretal paragraph 

we will order that the supplemental promulgating order reflect the omitted 

information.

III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, 

we have determined that the findings and sentence as modified above are 

correct in law and fact and that no error materially prejudicial to the appellant’s substantial rights occurred. Art. 59(a) and 66(c), UCMJ. Accordingly, 

the findings and sentence, as modified above, are AFFIRMED.

The supplemental order shall reflect the following: (1) An accurate summary of all charges and specifications on which the appellant was arraigned

and reflect the pleas he entered to these offenses; (2) An accurate summary of 

the findings or disposition of all offenses on which the appellant was arraigned and entered pleas; and (3) the affirmed sentence of this court. Due to 

the extensive inaccuracies of the original CMO, the court has provided an 

aide in drafting the supplemental CMO in Appendix A to this opinion. 

Chief Judge WOODARD and Judge HITESMAN concur.

 

STG3 A.I.’s vagina with his mouth, by unlawful force, to wit: grabbing STG3 A.I.’s 

hair and pulling her head back, holding STG3 A.I. down on the bed, and applying 

pressure on STG3 A.I’s neck with his left hand until she lost consciousness.”

39 The trial counsel improperly noted on the charge sheet that these offenses were 

withdrawn and dismissed without prejudice by the military judge. The legal effect of 

the military judge’s ruling is a finding of not guilty to the offenses. R.C.M. 917(f). 
United States v. Spinoza, No. 201700236

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FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court
United States v. Spinoza, No. 201700236

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Appendix A

Charge I: Violation of the UCMJ, Article 80

Plea: Not Guilty

Finding: Not Guilty pursuant to R.C.M. 917.

Specification: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, 

California, on or about July 2015, unlawfully break and enter the dwelling 

house of Ms. S.M., with intent to commit assault therein.

Plea: Not Guilty

Finding: Not Guilty pursuant to R.C.M. 917.

Charge II: Violation of the UCMJ, Article 120

Plea: Not Guilty

Finding: Not Guilty

Specification 1: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine 

Countermeasures Squadron Three, on active duty, did, at or near San Diego, 

California, on or about 1 August 2015, commit sexual contact upon STG3 A.I., 

U.S. Navy, to wit: biting her right nipple, by unlawful force, to wit: by strangling STG3 A.I. with his left hand and holding her down on the bed.

Plea: Not Guilty

Disposition: The specification was dismissed. However, the military judge 

merged the operative language of this specification with the operative language from Charge II, Specification 2, Charge IV, Specification 1, and the 

sole specification of Additional Charge I, into the following specification 

under Charge II, alleging a violation of Article 120, UCMJ.

**Specification: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine 

Countermeasures Squadron Three, on active duty, did, at or near San Diego, 

California, on or about 1 August 2015, commit sexual contact upon STG3, 

A.I., U.S. Navy, to wit: biting STG3 A.I.’s lower lip, neck, and nipple with his 

mouth, strangling STG3 A.I.’s neck with his hand until she lost consciousness, and biting STG3 A.I.’s vagina with his mouth, by unlawful force, to wit:

grabbing STG3 A.I.’s hair and pulling her head back, holding STG3 A.I. down 

on the bed, and applying pressure on STG3 A.I’s neck with his left hand until 

she lost consciousness.

Finding: Not Guilty.

Specification 2: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine 

Countermeasures Squadron Three, on active duty, did, at or near San Diego, 

California, on or about 1 August 2015, commit sexual contact upon STG3 A.I., 

U.S. Navy, to wit: biting her vagina, by first rendering her unconscious.

Plea: Not Guilty

Disposition: The specification was dismissed. However, the military judge 

merged the operative language of this specification with the operative language from Charge II, Specification 1, Charge IV, Specification 1, and the 
United States v. Spinoza, No. 201700236

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sole specification of Additional Charge I, into the specification noted above at 

** under Charge II, alleging a violation of Article 120, UCMJ. The finding to 

the offense was Not Guilty.

Charge III: Violation of the UCMJ, Article 120a

Plea: Not Guilty

Finding: Guilty

Specification 1: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine 

Countermeasures Squadron Three, on active duty, who should have known 

that Ms. S.M. would be placed in reasonable fear of bodily harm to herself, 

did, at or near San Diego, California, on or about July 2015, wrongfully 

engage in a course of conduct directed at Ms. S.M., to wit: unlawfully grabbing Ms. S.M. on the arm with his hand, sending her text messages threatening to break into her home, and going to Ms. S.M.’s home and attempting to 

enter it, thereby inducing in Ms. S.M. a reasonable fear of bodily harm to 

herself.

Plea: Not Guilty

Finding: Guilty, except for the words “and attempting to enter it.” Of the 

excepted words, Not Guilty. Of the specification as excepted, Guilty. 

Specification 2: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine 

Countermeasures Squadron Three, on active duty, who should have known 

the LTJG M.M., U.S. Navy, would be placed in reasonable fear of bodily harm 

to herself, did, at or near San Diego, California, on divers occasions on or 

about March 2014, wrongfully engage in a course of conduct directed at LTJG 

M.M., to wit: arriving unannounced at her residence on more than one 

occasion and breaking into her residence, thereby inducing in LTJG M.M. a 

reasonable fear of bodily harm to herself.

Plea: Not Guilty

Finding: Not Guilty pursuant to R.C.M. 917.

Charge IV: Violation of the UCMJ, Article 128

Plea: Not Guilty

Finding: Guilty

Disposition: The charge was conditionally dismissed after findings as unreasonably multiplicious with the finding of Guilty to Charge III, Specification 1.

Specification 1: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine 

Countermeasures Squadron Three, on active duty, did, at or near San Diego, 

California, on or about 1 August 2015, unlawfully bite STG3 A.I., U.S. Navy 

on her lower lip and neck with his mouth.

Plea: Not Guilty

Disposition: The specification was dismissed. However, the military judge 

merged the operative language of this specification with the operative language from Charge II, Specifications 1 and 2, and the sole specification of 
United States v. Spinoza, No. 201700236

20

Additional Charge I, into the specification noted above at ** under Charge II, 

alleging a violation of Article 120, UCMJ. The finding to the offense was Not 

Guilty.

Specification 2: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine 

Countermeasures Squadron Three, on active duty, did, at or near San Diego, 

California, on or about July 2015, unlawfully grab Ms. S.M. on the arm with 

his hand.

Plea: Not Guilty

Finding: Guilty

Disposition: Conditionally dismissed after findings as unreasonably multiplicious with the finding of Guilty to Charge III, Specification 1.

Charge V: Violation of the UCMJ, Article 133

Plea: Not Guilty

Disposition: Withdrawn and dismissed without prejudice. However, as a 

result of the findings to Charge II and Charge VI, Specification 2, the legal 

effect of these findings renders the dismissal with prejudice.

Specification: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, 

California, on divers occasions between on or about July 2015 and on or about 

August 2015 commit misconduct to wit: aggravated sexual contact and 

fraternization, which conduct was unbecoming an officer and a gentleman.

Plea: Not Guilty

Disposition: Withdrawn and dismissed without prejudice. However, as a 

result of the findings to Charge II and Charge VI, Specification 2, the legal 

effect of these findings renders the dismissal with prejudice.

Charge VI: Violation of the UCMJ, Article 134

Plea: Not Guilty

Finding: Guilty

Specification 1: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine 

Countermeasures Squadron Three, on active duty, did, at or near San Diego, 

California, on or about July 2015, wrongfully communicate to Ms. S.M. a 

threat to injure her date by texting her he would come to her house, break in, 

and kill her date, such conduct being of a nature to bring discredit upon the 

armed forces.

Plea: Not Guilty

Finding: Guilty

Disposition: Conditionally dismissed after findings as unreasonably multiplicious with the finding of Guilty to Charge III, Specification 1.

Specification 2: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine 

Countermeasures Squadron Three, on active duty, did, at or near San Diego, 

California, on or about July 2015, knowingly fraternize with STG3 A.I., U.S. 
United States v. Spinoza, No. 201700236

21

Navy, an enlisted person, on terms of military equality, to wit: by having 

sexual intercourse with STG3 A.I., in violation of the custom of the Naval 

Service of the United States that officers shall not fraternize with enlisted 

persons on terms of military equality, such conduct being of a nature to bring 

discredit upon the armed forces.

Plea: Not Guilty

Finding: Guilty

Specification 3: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine 

Countermeasures Squadron Three, on active duty, was, at or near San Diego, 

California, on or about 26 March 2016, drunk and disorderly, such conduct 

being of a nature to bring discredit upon the armed forces.

Plea: Not Guilty

Disposition: Withdrawn and dismissed without prejudice.

Additional Charge I: Violation of the UCMJ, Article 128

Plea: Not Guilty

Disposition: The charge was dismissed. However, the military judge 

merged the operative language of the specification under the charge with the 

operative language from Charge II, Specifications 1 and 2, and Charge IV, 

Specification 1, into the specification noted above at ** under Charge II, 

alleging a violation of Article 120, UCMJ. The finding to the offense was Not 

Guilty.

Specification: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, 

California, on or about 1 August 2015, commit an assault upon STG3 A.I., 

U.S. Navy, by strangling her with force likely to produce death or grievous 

bodily harm, to wit: applying pressure on her neck with his left hand until 

she lost consciousness.

Plea: Not Guilty

Disposition: The specification was dismissed. However, the military judge 

merged the operative language of this specification with the operative language from Charge II, Specifications 1 and 2, and Charge IV, Specification 1, 

into the specification noted above at ** under Charge II, alleging a violation 

of Article 120, UCMJ. The finding to the offense was Not Guilty.

Additional Charge II: Violation of the UCMJ, Article 134

Plea: Not Guilty

Finding: Guilty

Specification: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, 

California, in March 2014, unlawfully enter the dwelling house of LTJG 

M.M., U.S. Navy, such conduct being of a nature to bring discredit upon the 

armed forces.

Plea: Not Guilty
United States v. Spinoza, No. 201700236

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Finding: Guilty, except for the word “March,” substituting therefor the 

words “on or about May.” Of the except word, Not Guilty. Of the specification 

as excepted and substituted, Guilty.