United States v. Eppes
ACM 38881
| A.F.C.C.A. | Feb 21, 2017Background
- Appellant, an AFOSI special agent, pled guilty (per pretrial agreement) to conspiracy, false official statement, multiple larceny and fraud specifications, and conduct unbecoming an officer for an extended scheme of fraudulent travel vouchers and related thefts that caused over $80,000 loss to the United States and separate insurance fraud totaling ~$91,000.
- Investigation began after a hotel manager reported that Appellant had misused his position at the Pentagon to obtain tax-exempt status and to pressure the hotel; AFOSI found false documents in a shared office desk and obtained a civilian warrant to search Appellant’s off-base residence, seizing computers and other items.
- Appellant consented to a search of two personal bags but refused searches of electronic devices; AFOSI obtained verbal search authorization from a military magistrate and later a written authorization to search the electronic devices; data extraction and later off-site forensic analysis followed.
- Additional searches: government office/shared-desk inspection by a coworker (SP), consensual searches, and a February 2013 search of a personal bag near Appellant; Appellant challenged multiple searches and seizures on Fourth Amendment grounds.
- At sentencing Appellant received dismissal, 10 years confinement, forfeiture of all pay/allowances, and a $64,000 fine (plus further confinement if unpaid); the convening authority approved. Appellant raised seven issues on appeal, including suppression, improvident pleas, failure-to-state, denial of deferment of forfeitures, sentence appropriateness, and multiplicity.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Validity of searches/seizures (office, residence, electronics, bags, computer) | Searches were unconstitutional (overbroad warrants, lack of particularity, defective verbal authorization, untimely/off-site computer search) | Searches were reasonable; magistrates had probable cause; good-faith and plain-view doctrines and Mil. R. Evid. 315/311 apply; delays and procedures were lawful/reasonable | Military judge’s denial of suppression affirmed; factual findings not clearly erroneous; warrants and verbal authorization valid; good-faith exception and plain view sustained seizures and later computer analysis |
| Providence of plea to conspiracy to violate a lawful general regulation (drug conspiracy) | Conspiracy to possess controlled substances must be charged under Article 112a or is preempted; regulation didn’t cover controlled substances | Preemption doesn’t bar charging under Article 92/regulation; regulation covers ‘‘intoxicating substances’’ including prescription misuse | Plea provident; conspiracy to violate the regulation was properly charged and accepted |
| Providence of plea to conduct unbecoming (threat to blacklist hotel) | Appellant claims he didn’t use the exact term “blacklist,” so plea improvident | Appellant admitted facts and agreed to stipulation; inability to recall exact words doesn’t defeat providence | Plea provident; stipulation and Appellant’s admissions support the specification |
| Specification alleging failure to report/structuring (31 U.S.C. § 5324) fails to state an offense | Specification ambiguous as to which statutory theory (structuring vs. failing to report); insufficient notice/double jeopardy risk | Record and providence inquiry gave fair notice; elements alleged either expressly or by implication; double jeopardy protection satisfied by record | No plain error; specification states an offense and gave adequate notice; double-jeopardy protections preserved |
Key Cases Cited
- O’Connor v. Ortega, 480 U.S. 709 (government employee workplace privacy is limited)
- Illinois v. Gates, 462 U.S. 213 (probable cause is a practical, common-sense determination)
- United States v. Leon, 468 U.S. 897 (good-faith exception to exclusionary rule)
- United States v. Abboud, 438 F.3d 554 (fraud investigations may permissibly seek broad business/financial records)
- United States v. Wicks, 73 M.J. 93 (searches of seized computer hardware presumptively reasonable when authorized)
- United States v. Cote, 72 M.J. 41 (off-site analysis of seized electronic media can be reasonable in the digital era)
- United States v. Inabinette, 66 M.J. 320 (standard of review for acceptance of guilty pleas)
- United States v. Grostefon, 12 M.J. 431 (appellate standard for claiming waived issues and sentence appropriateness)