               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.

                                  Before
               J.A. FISCHER, K.M. MCDONALD, D.C. KING
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       ADRIANA H. GUERRERO
               STAFF SERGEANT (E-6), U.S. MARINE CORPS

                           NMCCA 201300397
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 17 May 2013.
Military Judge: CAPT Kevin O'Neil, JAGC, USN.
Convening Authority: Commanding General, 3d Marine
Logistics Group, Okinawa, Japan.
Staff Judge Advocate's Recommendation: LtCol P.D. Sanchez,
USMC.
For Appellant: LT Jessica Fickey, JAGC, USN.
For Appellee: Maj Crista Kraics, USMC; Maj Paul Ervasti,
USMC.

                            30 October 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

KING, Judge:

     A general court-martial, consisting of members with
enlisted representation, convicted the appellant, contrary to
her pleas, of conspiracy to evade immigration laws, willful
dereliction of duty, making a false official statement, larceny
of military property, and making a false claim, in violation of


            Corrected Opinion Issued on 4 November 2014
Articles 81, 92, 107, 121, and 132, Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 892, 907, 921, and 932. The members
sentenced the appellant to confinement for 2 years, reduction to
pay grade E-1, total forfeitures, a $100,000.00 fine, and a
dishonorable discharge. The convening authority approved the
sentence as adjudged, but suspended $65,000.00 of the fine for
12 months.

     The appellant raises four assignments of error (AOE): (1)
the military judge abused his discretion by admitting hearsay
statements into evidence; (2) the dereliction conviction is
legally and factually insufficient as to the specified dates of
the offense; (3) the convening authority’s action is erroneous,
and; (4) she received ineffective assistance of counsel at
trial.1

     We find merit in the appellant’s first assignment of error
and will take corrective action in the decretal section of this
opinion.

                                 Background

     In October 2002, the appellant married Mr. Jesus Andrade.
At the time of the marriage, the appellant was a lance corporal
in the Marine Corps and Mr. Andrade was an undocumented
immigrant living and working on a ranch in San Miguel,
California.

     The couple did not live together during the marriage. The
appellant continued her career with the Marine Corps while Mr.
Andrade continued living in San Miguel and, later, Mexico. In
the years that followed, the appellant collected many thousands
of dollars in military allowances after she falsely claimed that
Mr. Andrade had relocated to San Bruno, a city with a
substantially higher allowance for housing than his actual city
of residence. Yet the appellant never provided financial
support to Mr. Andrade. As a result, the Government charged the
appellant with, inter alia, conspiring with Mr. Andrade to enter
into a “sham” marriage for which Mr. Andrade would receive
immigration benefits and the appellant would draw the monetary
entitlements afforded to married Marines. Additional facts
necessary for resolution of each AOE are developed below.




1
  This fourth assignment of error is raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).
                                      2
                                Discussion

1.     Admission of Hearsay Statements

     In Specification 1 of Additional Charge I, the appellant
was charged with and convicted of conspiring with Mr. Andrade to
evade provisions of United States immigration laws by knowingly
entering into a sham marriage.2 In an Article 39(a), UCMJ
session, the Government moved in limine to admit the testimony
of three witnesses about statements that Mr. Andrade made to
them concerning the conspiracy he had entered into with the
appellant. The Government argued the statements were admissible
as the statements of a co-conspirator under MILITARY RULE OF EVIDENCE
801(d)(2)(e), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). The
appellant opposed the admission of these statements, arguing
that Mr. Andrade’s statements did not qualify as non-hearsay.

      We review a military judge’s decision to admit evidence for
an abuse of discretion. United States v. Cucuzella, 66 M.J. 57,
59 (C.A.A.F. 2008). Hearsay is generally inadmissible. MIL. R.
EVID. 802. However, a statement is not hearsay if the accused is
part of a conspiracy, the statement is made by the accused’s co-
conspirator, and the statement is made “during the course of and
in furtherance of the conspiracy.” MIL. R. EVID. 801(d)(2)(E).
Here, the appellant contends that the statements were not “in
furtherance” of the conspiracy. We agree.

     After reading the parties briefs and hearing argument, the
military judge informed the parties that “[a]s discussed in the
802, the [c]ourt tended to agree that the statements were status
reports of an ongoing conspiracy, but [the] [c]ourt cannot tell
if there is any conspiracy until there is some other evidence
offered of the conspiracy.”3 Therefore, the military judge
stated: “I will at this point reserve ruling on your motion in
limine because you have not set forth sufficient evidence for me
to be able to rule . . . . So I need to see what evidence is
presented. And, if and when, you desire to offer these
statements and you still desire to offer them as co-conspirator
statements, request a 39(a). We will address this matter
again.”4 The issue was never revisited on the record. The

2
  The appellant was also charged with entering into a conspiracy with Mr.
Andrade to commit the offense of larceny of military entitlements and
allowances by knowingly entering into a sham marriage. The members acquitted
her of this offense.
3
    Record at 283.
4
    Id. at 286.
                                     3
Government did not request an Article 39(a), UCMJ session prior
to offering evidence of the hearsay statements and the defense
did not renew its objection when the statements were ultimately
offered. Instead, trial before the members commenced and the
members heard evidence of the statements.

     From the record, we infer that the military judge believed
the statements would meet the requirements for admissions of a
co-conspirator provided the Government first established that
there was a conspiracy. Shortly thereafter, the members were
seated and the Government called as its first witness a special
agent of the Naval Criminal Investigative Service, who testified
substantially as set forth in the background section of this
opinion, thus satisfying this prerequisite. Next, the
Government called the three witnesses who testified in turn
regarding the statements Mr. Andrade made to them. Under these
circumstances, we conclude that the military judge determined
that there was sufficient evidence that a conspiracy existed and
that the statements were “in furtherance” thereof.5

     To determine whether the military judge abused his
discretion, we turn now to the statements themselves. Sometime
in 2002, before the appellant and Mr. Andrade were married, Mr.
Andrade had a conversation with his employer, Mr. John Walters.
At trial, Mr. Walters testified as follows:

        [Mr. Andrade] had looked into it, essentially, and
        said that he was possibly going to marry someone in
        the military, and that would probably be the fastest
        way to get his legal status taken care of.

        . . .

        Well, he essentially said that this would be the
        fastest way, and that it would benefit him by the
        legal status that he would hopefully acquire from the
        marriage, and it would benefit her. I had no idea
        what the benefit for her was, I didn’t ask the
        question.6

     Mr. Andrade’s brother, Mr. Francisco Tapia, also testified
at trial about a conversation that happened sometime between

5
  Under these circumstances, we decline to hold that the appellant forfeited
the issue by not renewing his objection. United States v. Dollente, 45 M.J.
234, 239-40 (C.A.A.F. 1996); see also Art. 66(c), UCMJ.
6
    Record at 461-62.


                                      4
2002 and 2007 in which Mr. Andrade explained his reason for
marrying the appellant:

        I had understanding, what [Mr. Andrade] told me, it
        was that he was going to get some benefits being legal
        in the country.

        . . .

        Yeah, he told me that [the appellant] was going to get
        some benefits, and he was going to get benefits,
        that’s what he told.7

     Finally, Mr. Tapia’s wife, Mrs. Sandra Morales, also
testified at trial about a conversation with Mr. Andrade:

        Q.   And how did he   describe his marriage to you?
        A.   It was nothing   to him. It wasn’t like, he was
        married, like if he   wanted to. Like, he just got
        married. It wasn’t,   like, love, you know?

        Q.   Now, did he describe to you the reason why they
        got married?
        A.   Yes.

        Q.   What was that?
        A.   For him is to get his paper fixed. It was for
        him to get, like, a visa, you know, to come in and out
        of Mexico, to visit his family; and for her, for her
        benefits, through the Marines.

        Q.   Now did he mention specifically that she was
        going to get some benefit out of it?

        A.      Yes.

        Q.   What did he tell you?
        A.   Like, more money, like, for her to have, and just
        for her to have his papers, that’s why he did it. But,
        you know—

        Q.   So he described to you that the marriage was
        beneficial for him for immigration papers?
        A.   Yeah.



7
    Id. at 504.


                                     5
        Q.   And beneficial for her in getting more money from
        the Marine Corps?
        A.   Yes, yes.8

     Whether a statement of a co-conspirator is “in furtherance
of” a conspiracy has vexed courts and scholars alike. See 5
Weinsteins Federal Evidence, § 801.34 and cases cited therein.
However, generally speaking, a co-conspirator’s statement is
considered to be in furtherance of the conspiracy “as long as it
tends to promote one or more of the objects of the conspiracy.”
United States v. Piper, 298 F.3d 47, 54 (1st Cir. 2002)
(citation omitted).

     When one member of a conspiracy reports to another member
about the status of a conspiracy, this may advances an object of
the conspiracy by ensuring that all members of the conspiracy
have up-to-date information. See United States v. Ratliff, 42
M.J. 797, 801-02 (N.M.Ct.Crim.App. 1995). However, Mr.
Andrade’s statements were not to fellow co-conspirators, but to
uninvolved third parties. For this reason, we reject any
conclusion that these statements were “status reports of an
ongoing conspiracy.”9 While there are situations where
statements to uninvolved third parties may advance the goals of
a conspiracy (e.g., statements made in an attempt to recruit a
third party into a conspiracy and statements made in an attempt
to allay a third party’s suspicions about a criminal
undertaking, United States v. Evans, 31 M.J. 927, 934 (A.C.M.R.
1990)), none of these situations apply here. Instead, the
statements at issue were “mere narrative declarations” about the
conspiracy, which did not tend to promote any object of the
conspiracy. United States v. Kellett, 18 M.J. 782, 785
(N.M.C.M.R. 1984). Accordingly, the military judge abused his
discretion by admitting them.

     Having found error, we test for prejudice. To determine
whether an appellant was prejudiced by erroneously admitted
evidence, we balance four factors: (1) strength of the
Government’s case, (2) strength of the defense case, (3)
materiality of the erroneously admitted evidence, and (4)
quality of the erroneously admitted evidence. United States v.
Ediger, 68 M.J. 243, 250 (C.A.A.F. 2010).

     The Government’s case of conspiring to evade immigration
laws rested on inferential and circumstantial evidence. The

8
    Id. at 537-38.
9
    Id. at 283.
                                   6
Government was required to prove that the appellant specifically
intended to evade a provision of United States immigration laws.
See 8 U.S.C. 1325(c). Though the Government had ample proof
that the marriage was a sham, the only other evidence of a
conspiracy to evade immigration laws was the fact that the
appellant submitted Prosecution Exhibit 2, an Immigration and
Naturalization form, signed by her husband, seeking to modify
Mr. Andrade’s alien status.

     While the appellant did present some evidence suggesting
that she and Mr. Andrade had been in love at the time the
marriage was entered in to, the defense case was otherwise weak.

     The erroneously admitted hearsay statements were material
because they went directly to the elements of the conspiracy, as
evidenced by the trial counsel’s opening statement: “the
government’s going to present you with the best evidence we
have, which is the boss, the brother, and the sister-in-law of
what the intent was of this marriage.”10 The hearsay statements
did indeed tend to show that the marriage was a sham and that it
was specifically arranged for the purpose of, in part, allowing
Mr. Andrade to obtain a beneficial immigration status.

     Finally the quality of the evidence was high. The hearsay
statements were presented by three different witnesses with no
reasonable motive to lie. In fact, all three witnesses were
granted federal testimonial immunity.

     Balancing all four factors, we conclude that the appellant
was prejudiced by the erroneous admission of the hearsay
statements against her. We therefore set aside the appellant’s
conviction on this offense.

2.     Legal and Factual Sufficiency of the Dereliction Conviction

     The appellant next contends that her conviction for willful
dereliction of duty is legally and factually insufficient. We
review legal and factual sufficiency de novo. See 10 U.S.C. §
866 (2012). The test for legal sufficiency is whether any
reasonable trier of fact could have found that the evidence met
the essential elements of the charged offense, viewing the
evidence in a light most favorable to the Government. United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987). The test for
factual sufficiency is whether we are convinced of the
appellant’s guilt beyond a reasonable doubt, allowing for the


10
     Id. at 359.
                                   7
fact that we did not personally observe the witnesses.   Id. at
325.

     In March of 2004, the appellant executed an unaccompanied
permanent change of station to Okinawa, Japan. Once in Okinawa,
the appellant filed paperwork falsely claiming that her husband
had relocated to San Bruno, CA, a location with a significantly
higher housing allowance than his actual city of residence. In
September 2007, Mr. Andrade fled to Mexico and did not return.
The Government preferred a charge of dereliction of duty,
alleging that “”between on or about July 2007 and ... 15 May
2011, [the appellant] was derelict in the performance of those
duties in that she willfully failed to update the geographic
location of her husband, as it was her duty to do.”

     The Government’s theory was that the appellant was required
to update her record when her husband departed for Mexico. The
appellant argues that the Government failed to prove that she
knew about her husband’s departure until the summer of 2008.
Therefore, the appellant argues that she may not be found guilty
of willful dereliction prior to 2008. We disagree.

     We are not bound in our determination of the factual and
legal sufficiency of the evidence by the theories advanced by
the Government, nor were the members bound to accept the
Government’s theory in order to find the appellant guilty.
United States v. Gonzalez, 1992 CMR LEXIS 763 (N.M.C.M.R. 1992)
(citing United States v. Rounds, 30 M.J. 76 (C.M.A. 1990)). In
addition to evidence that Mr. Andrade fled to Mexico in 2007,
the members received evidence that “[e]ach Marine is responsible
for reporting events that may affect pay entitlements[.]”11
The members were instructed that the elements of this offense
were that (1) the appellant had a duty to update the geographic
location of her husband; (2) that the appellant actually knew or
reasonably should have known of this duty; (3) that between on
or about July 2007 and between on or about 15 May 2011 the
appellant was willfully derelict in the performance of that duty
in that she failed to update the geographic location of her
husband. The record amply supports a finding that the
appellant’s duty to correct her pay commenced from the moment
she falsely reported that Mr. Andrade lived in San Bruno. Thus,
the members’ verdict that the appellant was guilty of willful
dereliction of duty is legally and factually sufficient.




11
     PE 17 at 5.
                                8
3.     Ineffective Assistance of Counsel

     The appellant’s final assignment of error concerns
ineffective assistance of counsel. The appellant argues that
her trial defense counsel erred by failing to correctly advise
her of the maximum sentence and failing to pursue a pretrial
agreement.

     We analyze ineffective assistance of counsel claims under
the two-prong test outlined in Strickland v. Washington, 466
U.S. 668, 687 (1984). To prove ineffective assistance of
counsel, the appellant must show: (1) that trial defense
counsel’s performance was deficient, and (2) that the deficiency
resulted in prejudice. Id.

     For the second prong of Strickland, the appellant bears the
burden to “affirmatively prove prejudice.” Id. at 693. We find
that the appellant has not met that burden here. Though the
appellant’s post-trial declaration avers that knowledge of the
correct maximum sentence or the opportunity to pursue a pretrial
agreement “would have impacted [her] decisions at trial,”12 the
appellant has submitted no evidence to establish that the
outcome of the court-martial would have actually been different
but for the alleged deficiency. Accordingly, we need not
analyze the first prong of Strickland. We grant no relief for
this assignment of error.

4.     Sentence Reassessment

     Having set aside the appellant’s conviction on
Specification 1 of the Additional Charge (conspiracy to evade
immigration laws), we must consider whether we can reassess the
sentence or whether this case should be returned for a sentence
rehearing.

     This court has “broad discretion” in deciding to reassess a
sentence to cure error and in arriving at the reassessed
sentence. United States v. Winckelmann, 73 M.J. 11, 12
(C.A.A.F. 2013). This is so because judges of the Courts of
Criminal Appeals can modify sentences “‘more expeditiously, more
intelligently, and more fairly’ than a new court-martial.” Id.
at 15 (quoting Jackson v. Taylor, 353 U.S. 569, 580 (1957)).
Pursuant to the four factors set forth in Winckelmann, we are
confident we can reassess the sentence in this case. First, as
a result of reversing the conspiracy conviction, the maximum
possible sentence to confinement is reduced from 25 years and

12
     Appellant’s Motion to Attach of 27 Feb 2014, Appellant’s Declaration at 3.
                                         9
six months to 20 years and six months. This is not a dramatic
change in the penalty landscape or exposure. Second, the
appellant was sentenced by members. While we recognize that
this may reduce the certainty to which we can afford our
reassessment, this factor is not dispositive. Third, the
gravamen of the appellant’s offenses is that she entered into a
sham marriage and made false official statements to steal money
from the United States. The appellant still stands properly
convicted of committing those offenses. Finally, this court
collectively has ample experience with allowance fraud and
larceny under similar facts. This experience informs us that we
are able to reliably determine what sentence would have been
imposed at trial.

     Therefore, under the unique facts of this case and
considering the totality of the circumstances, we find we are
able to “determine to [our] satisfaction that, absent any error,
the sentence adjudged would have been of at least a certain
severity.” United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986). Accordingly, we will affirm the sentence as adjudged
with the exception of the dishonorable discharge, affirming
instead a bad-conduct discharge.

                           Conclusion

     The findings of guilty of Additional Charge I and
Specification 1 thereunder are set aside and that charge and
specification are dismissed. The remaining findings are
affirmed. Upon reassessment, we affirm only that part of the
sentence that extends to confinement for two years, total
forfeitures, a fine of $100,000.00, reduction to pay grade E-1,
and a bad-conduct discharge.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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