United States v. Shears

• Court: United States Air Force Court of Criminal Appeals
• Decided: September 3, 2020
• Docket: ACM S32577
• Status: Unpublished

Opinion

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________

No. ACM S32577 ________________________

UNITED STATES Appellee v. Joshua SHEARS Senior Airman (E-4), U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Decided 3 September 2020 ________________________

Military Judge: Joseph S. Imburgia. Approved sentence: Bad-conduct discharge, confinement for 45 days, re- duction to E-1, and a reprimand. Sentence adjudged 28 January 2019 by SpCM convened at Kadena Air Base, Japan. For Appellant: Major Yolanda D. Miller, USAF. For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Mary Ellen Payne, Esquire. Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military Judges. Judge MEGINLEY delivered the opinion of the court, in which Senior Judge POSCH and Judge RICHARDSON joined. ________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ MEGINLEY, Judge: A special court-martial composed of a military judge sitting alone convicted Appellant, in accordance with his pleas and a pretrial agreement (PTA), of one specification of wrongfully endeavoring to interfere with one or more special United States v. Shears, No. ACM S32577

agents of the Naval Criminal Investigative Service (NCIS) in the performance of their official duties, and two specifications of communicating indecent lan- guage, both in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. 1 The military judge sentenced Appellant to a bad- conduct discharge, confinement for 45 days, reduction to the grade of E-1, and a reprimand. The convening authority deferred the reduction in grade from 11 February 2019 until action and deferred the mandatory forfeitures from 11 February 2019 until Appellant’s release from confinement. Otherwise, the con- vening authority approved the sentence as adjudged. The PTA limited confine- ment to two months and had no impact on the sentence that the convening authority could approve. On appeal, Appellant personally raises two issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): (1) whether the military judge abused his discretion in admitting certain personnel records during presen- tencing; and (2) whether his sentence is inappropriately severe. We find no error that materially prejudiced Appellant’s substantial rights and affirm.

I. BACKGROUND Appellant entered active duty in July 2010. At the time of the offenses al- leged in the Charge and its specifications, he was stationed at Kadena Air Base (AB), Okinawa, Japan. Between 10 March 2017 and 4 January 2018, special agents of the NCIS sought to identify and apprehend military members at- tempting to commit sexual offenses against children on the Internet. Those agents posted ads on Craigslist, an advertising website, where the agents posed as minors, or as adults facilitating sexual activity with children of mili- tary personnel assigned to installations in Japan. These operations were rec- ognized by Appellant as similar to the “To Catch a Predator” (TCAP) television series. At trial, Appellant stipulated with the Government that before engaging in the charged conduct, he was aware of TCAP investigations, having seen videos on a website maintained by a civilian defense attorney who represented ser- vicemembers accused of soliciting minors at Kadena AB. In March 2017, Ap- pellant took an interest in one of the TCAP Craigslist advertisements. Appel- lant stipulated that he believed the ads were posted by military law enforce-

1 All references in this opinion to the Uniform Code of Military Justice, the Rules for Courts-Martial, and the Military Rules of Evidence are to the Manual for Courts-Mar- tial, United States (2016 ed.).

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ment personnel engaging in undercover sting operations, stating to law en- forcement after he was apprehended, “it was super obvious . . . like shooting fish in a barrel, no ifs, ands, or buts, these are cops.” Appellant responded to an advertisement via the “Kik” messenger applica- tion. Using the username “El_Don23,” Appellant requested the poster’s Kik user identification via email. On 9 March 2017, an undercover NCIS agent pos- ing as a minor named “Alexandria Tate” responded to Appellant via email, tell- ing him she was 14 years old. Over the next four months, Appellant communi- cated sexually explicit language to “Alexandria,” requested she send him nude photos, and Appellant made graphic sexual overtures. Appellant admitted in his guilty plea inquiry that his communications with “Alexandria” were inde- cent. Appellant stipulated he believed that “Alexandria” was an undercover agent, and explained his communications with “Alexandria” were with the in- tent to “mess with” law enforcement. At trial, Appellant further explained his intent was to “[p]retty much interfere with their job, [and] waste their time.” On 27 December 2017, Appellant responded to another Craigslist ad posted by NCIS agents. This ad identified the poster as a “poor teen in need of money.” Again, Appellant engaged in conversations with an NCIS agent. The NCIS agent told Appellant she was trying to raise money to buy a phone and identi- fied herself as a 14-year-old girl. Appellant discussed the services she could perform, and agreed that she could wash Appellant’s car. Appellant offered to pay her $200.00 if she would wash and wax his car while wearing a bikini. Thereafter, the conversations progressed to sexually explicit statements from Appellant, including indecent propositions to engage in sexual conduct. Like his earlier conversations with “Alexandria,” Appellant stipulated that he be- lieved he was communicating with an undercover agent and during his guilty plea inquiry admitted the language he used was indecent. Two days later, on 29 December 2017, Appellant again initiated a conver- sation with an NCIS agent’s persona. This time, the NCIS agent posed as a 32- year-old military spouse seeking men wanting to have sexual encounters with her and her 13-year-old daughter. Appellant exchanged messages with the agent and agreed to meet over coffee before planning future encounters for sex. On 4 January 2018, Appellant agreed to meet at the Shoppette on Kadena AB. NCIS agents identified and observed Appellant enter and then depart the area. When Appellant left the Shoppette, NCIS agents followed him to a Child De- velopment Center, where he was apprehended. After identifying himself as an Airman, NCIS brought Appellant to the Air Force Office of Special Investiga- tions (AFOSI) for questioning. During questioning, Appellant told the AFOSI agents he knew all along that the individuals with whom he had been communicating were undercover agents. He claimed that even after the agents identified themselves as 14-year-

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old children, he continued the conversations because he wanted to “f**k with [them].” In a second interview, Appellant stated he thought it was obvious the individuals behind the ads were law enforcement and he knew he was inter- fering with undercover agents working in their official duties. Appellant stip- ulated that the NCIS agents spent approximately 120 hours working on Ap- pellant’s case.

II. DISCUSSION A. Admission of Certain Personnel Records during Sentencing 1. Additional Background During the sentencing hearing, trial counsel introduced evidence of Appel- lant’s “rehabilitative potential” related to Appellant’s numerous physical fit- ness assessment failures. 2 Trial counsel introduced four letters of reprimand (LORs) (with allied documents including Unfavorable Information File ac- tions), and one letter of counseling (LOC). Trial defense counsel objected to these documents “on the basis of relevance to [the] proceeding.” Trial counsel argued the documents were relevant “to his personal data and character of his service” and because Appellant had been repeatedly counseled and had not shown improvement. Following a discussion on the record about the admissibility of the records under Rule for Courts-Martial (R.C.M.) 1001(b)(2), the military judge asked trial defense counsel if he “would agree that’s relevant under the rule?” Trial defense counsel replied, “Yes, sir. We feel that the rule is broad enough that a good faith argument could be made that it is relevant.” After conducting a bal- ancing test under Mil. R. Evid. 403, the military judge admitted the LORs and LOC. 2. Law We review a military judge’s admission or exclusion of evidence, including sentencing evidence, for an abuse of discretion. United States v. Hyppolite, 79 M.J. 161, 166 (C.A.A.F. 2019). “The abuse of discretion standard is a strict one, calling for more than a mere difference of opinion. The challenged action must be ‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly erroneous.’” United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (citing United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997); United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)). “A military judge abuses his discretion when: (1) the findings

2 The physical fitness assessment failures were marked as Prosecution Exhibits 5–10 for identification. The military judge found Prosecution Exhibits 5–-9 relevant, but sustained an objection with respect to Prosecution Exhibit 10 for identification, finding the exhibit was cumulative with the other exhibits.

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of fact upon which he predicates his ruling are not supported by the evidence of record; (2) if incorrect legal principles were used; or (3) if his application of the correct legal principles to the facts is clearly unreasonable.” United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008)). Rule for Courts-Martial 1001(b)(2) permits trial counsel to introduce an ac- cused’s personnel record as evidence of the prior service of the accused. These personnel records include “any records made or maintained in accordance with departmental regulations that reflect the past military efficiency, conduct, per- formance, and history of the accused.” Id. Finally, Air Force Instruction 51- 201, Administration of Military Justice, ¶ 12.26.1 (18 Jan. 2019), states rele- vant material contained in an accused’s unit personnel information file may be admitted during the sentencing hearing pursuant to R.C.M. 1001(b) if [c]ounsel provided a copy of the document or made the document available to opposing counsel prior to trial; and . . . there is some evidence that: [(1)] the accused received a copy of the correspondence (a docu- ment bearing the signature of the accused, or a witnessed state- ment regarding the accused’s refusal to sign) and had the oppor- tunity to respond to the allegation; and, [(2)] the document is not over five years old on the date the charges were referred to trial. See also United States v. Decker, No. ACM S32173, 2014 CCA LEXIS 774, *4– 5 (A.F. Ct. Crim. App. 15 Oct. 2014) (per curiam) (unpub. op.) (citing United States v. Sheridan, 43 M.J. 682, 685 (A.F. Ct. Crim. App 1995), for the propo- sition that “to be admissible under R.C.M. 1001(b)(2), reprimand need not com- ply with regulation governing unfavorable information files, but must meet re- quirements of military justice regulation governing presentencing matters”). 3. Analysis We conclude that even if Appellant did not waive appellate review of this issue, the military judge did not abuse his discretion in admitting these rec- ords. The military judge’s ruling was supported by the record, correct legal principles were used, and the application of those legal principles to the facts presented was reasonable. Furthermore, the relevance and probative value of this evidence with respect to Appellant’s past military efficiency, conduct, per- formance, and history meet the standards set forth in R.C.M. 1001(b)(2) and was not outweighed by the danger of unfair prejudice under Mil. R. Evid. 401 and 403. Finally, the records were made and maintained in accordance with

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Air Force regulations, there was evidence Appellant had an opportunity to re- spond, and none of the documents were more than five years old. B. Sentence Appropriateness 1. Law We review issues of sentence appropriateness de novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)). We may affirm only as much of the sentence as we find correct in law and fact and determine should be approved on the basis of the entire record. Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence ap- propriateness by considering the particular appellant, the nature and serious- ness of the offense[s], the appellant’s record of service, and all matters con- tained in the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App. 2015) (en banc) (per curiam) (alteration in original) (citing United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009)). Although we have great discretion to determine whether a sentence is appropriate, we have no authority to grant mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010) (citation omitted). 2. Analysis Appellant asks this court to set aside his bad-conduct discharge because it is inappropriately severe. Appellant argues he “did not commit lewd acts with a minor (or someone he thought was a minor),” that, “[h]e also did not inten- tionally obstruct justice,” and finally, “[h]e is guilty of one general disorder of- fense that is not enumerated and is not sexual in nature and two enumerated offenses of communicating indecent language.” In addition to the nature of these acts being unworthy of a bad-conduct discharge, Appellant notes he had only two months left before his only enlistment expired. We are not persuaded that the facts of Appellant’s case do not justify a bad- conduct discharge. Appellant knew about the nature of TCAP cases. Appellant pretended to be a child predator interested in engaging in the sexual abuse of not one, but two 14-year-old children over the course of 10 months, and went so far as to show up at a military facility, where he pretended to express inter- est in having sex with a military spouse and her 13-year-old daughter. During the course of his conversations with NCIS, the record shows Appellant never revealed that he believed his indecent communications were with law enforce- ment agents. Appellant stipulated that his conduct wrongfully interfered with NCIS agents in the performance of their official duties and that his behavior was service discrediting. The record shows NCIS agents spent an estimated 120 hours investigating and planning a case that appeared to involve an Airman who genuinely desired to sexually abuse a child. This further included having

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a NCIS polygraph examiner and a NCIS investigative cyber specialist availa- ble in the event an apprehension was made. Appellant acknowledged in his unsworn statement he was “ashamed when [he] was interviewed by AFOSI and was confronted with the amount of work they put in to all investigations, work that they could have been putting in to find actual individuals who vic- timize children.” Further, the language Appellant communicated to the NCIS agents’ 14- year-old persona, as part of his “entertaining prank,” was planned or intended to be grossly offensive to the community sense of modesty, decency, or propri- ety. As trial counsel noted, the texts contain “numerous references to mastur- bation, vulgar language about and description of hypothetical 14-year-old girls’ bodies, and more than 20 descriptions of and invitations to engage in penetra- tive sexual acts.” The maximum sentence included confinement for 12 months, a bad-conduct discharge, reduction to the grade of E-1, and forfeiture of two-thirds pay per month for 12 months. The military judge determined a 45-day term of confine- ment was appropriate, which was below the cap Appellant had agreed to in his PTA. However, a bad-conduct discharge is “qualitatively different” than con- finement. United States v. Josey, 58 M.J. 105, 108 (C.A.A.F. 2003). “The issue of whether a member of the armed forces should or should not receive a puni- tive discharge reflects a highly individualized judgment as to the nature of the offense as well as the person’s past record and future potential . . . .” Id. Having given individualized consideration to Appellant, the nature and seriousness of the offenses, Appellant’s record of service, and all other matters contained in the record of trial, we find a punitive termination of Appellant’s military status is not inappropriately severe.

III. CONCLUSION The approved findings and sentence are correct in law and fact, and no er- ror materially prejudicial to the substantial rights of Appellant occurred. Arti- cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find- ings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court