United States v. Sergeant First Class CRYSTAL Y. LLOYD

• Court: Army Court of Criminal Appeals
• Decided: May 19, 2011
• Docket: ARMY 20090842
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before TOZZI, SIMS, and GALLAGHER Appellate Military Judges

UNITED STATES, Appellee v. Sergeant First Class CRYSTAL Y. LLOYD United States Army, Appellant and Petitioner

ARMY 20090842

U.S. Army Combined Arms Support Command and Fort Lee Denise Lind, Military Judge Colonel Paul E. Kantwill, Staff Judge Advocate

For Petitioner: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M. Jamison, JA; Captain A. Jason Nef, JA; Captain Richard M. Gallagher, JA (Petition for New Trial); Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Laura R. Kesler, JA; Captain Richard M. Gallagher, JA (on brief); Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Laura R. Kesler, JA; Captain Richard M. Gallagher, JA (on reply brief).

For Appellee: Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Captain Edward J. Whitford, JA (Answer to Petition for New Trial); Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Captain Edward J. Whitford, JA (on brief).

19 May 2011

---------------------------------------------------------------------------- ---------------- SUMMARY DISPOSITION AND ACTION ON PETITION FOR NEW TRIAL ---------------------------------------------------------------------------- ----------------

TOZZI, Senior Judge:

On 15-17 September 2009 an enlisted panel sitting as a general court- martial convicted petitioner, contrary to her pleas, of making a false official statement (five specifications), larceny (two specifications), and frauds against the United States (three specifications), in violation of Articles 107, 121, and 132, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 907, 921, and 932 (2008). The convening authority approved the adjudged sentence of reduction to the rank of Private E1, six months of confinement, and a bad-conduct discharge.

This case is before our court for initial review pursuant to Article 66, UCMJ. Contemporaneously with her Article 66 pleadings, petitioner filed a Petition for a New Trial, in accordance with Rule for Courts- Martial (R.C.M.) 1210, based on newly discovered evidence, specifically that the divorce decree used as evidence in her court-martial to prove her crimes (which centered upon wrongfully receiving dependent-based benefits by misrepresenting that she was married) was subsequently voided by a civilian court on 1 December 2010.

For the reasons below, the Petition for New Trial is granted.

BACKGROUND

In July 1991, petitioner married Mr. JL in Germany while both were serving in the United States Army. In March 1997, after petitioner was assigned to Fort Totten, New York, petitioner and Mr. JL (who had since left the Army) physically separated and never again lived together. In April 2000, petitioner was reassigned from Fort Totten to Yongsan, Republic of South Korea, where she remained stationed until November 2007. In February 2002, Mr. JL filed a complaint for divorce in Baltimore City Circuit Court (“Circuit Court”), but the complaint and summons were twice returned as undelivered following certified mailing to what Mr. JL had asserted was petitioner’s last known address. As part of his pleadings in Circuit Court, Mr. JL submitted a signed affidavit attesting petitioner was not serving in the military. Ultimately, the Circuit Court granted Mr. JL’s motion for alternate service by posting the summons and complaint on a bulletin board at the courthouse door. In August 2002, the Circuit Court issued a default order against petitioner (Prosecution Exhibit (PE) 9), followed by a final divorce decree in November 2002 (PE 8).

From May 2004 until November 2007, while stationed in South Korea, petitioner received military benefits valued at nearly $135,000.00 based on her claim that she was married to Mr. JL. Petitioner began a new assignment at Fort Lee, Virginia in December 2007. From her arrival at Fort Lee until August 2008, petitioner received nearly $3,600.00 in entitlements based on her continued representation that she was married to Mr. JL.

In September 2009, petitioner was convicted of all charges and specifications. During her trial, the government presented PE 8 as evidence petitioner made false official statements on various official forms when she claimed she was married to Mr. JL, and that she illegally received dependent-based benefits as a result.

On 1 December 2010, the Circuit Court issued an order vacating the November 2002 divorce decree.

LAW AND DISCUSSION

Rule for Courts-Martial 1201(f)(2) states that a new trial shall not be granted unless petitioner demonstrates:

(A) The evidence was discovered after the trial; (B) The evidence is not such that it would have been discovered by the petitioner at the time of trial in the exercise of due diligence; and (C) The newly discovered evidence, if considered by a court- martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused.

See also Article 73, UCMJ. Petitions for new trial “are generally disfavored,” and should be granted “only if a manifest injustice would result absent a new trial.” United States v. Brooks, 49 M.J. 64, 68 (C.A.A.F. 1998) (quoting United States v. Williams, 37 M.J. 352, 356 (C.M.A. 1993).

We conclude petitioner has carried her burden under R.C.M. 1210. Regardless of her reputation as a single person or her election to file taxes under a “single” status, petitioner was legally married to Mr. JL at all times relevant to the disposition of this case. Prosecution Exhibit 8 was the sina qua non of the prosecution’s case; however, the complaint and summons were never properly served on petitioner, and Mr. JL’s attempts at serving petitioner included submitting an affidavit to the Circuit Court that failed to acknowledge petitioner was on active duty in the military. Petitioner exercised due diligence by filing her motion to vacate the divorce decree on 11 September 2009, prior to her trial. Additionally, petitioner has complied with the requirements of Article 73, UCMJ, which require a Petition for New Trial be submitted anytime within two years of the convening authority’s approval of the court-martial sentence.

CONCLUSION

For the foregoing reasons, the Petition for New Trial is GRANTED. The approved findings of guilty and sentence are set aside and a new trial may be ordered. All rights, privileges, and property, of which petitioner has been deprived by virtue of her sentence being set aside by this decision, are ordered restored. See UCMJ, arts. 58b(c) and 75(a).

Judge SIMS and Judge GALLAGHER concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court