UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                      CAMPANELLA, SALUSSOLIA, and FLEMING
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                       Specialist JEREMIAH J. WINDHAM
                          United States Army, Appellant

                                    ARMY 20160340

               Headquarters, 1st Cavalry Division (Rear)(Provisional)
                         Clinton Johnson, Military Judge
                 Colonel Oren H. McKnelly, Staff Judge Advocate

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Captain Joshua B.
Fix, JA; Captain Ryan T. Yoder, JA (on brief); Lieutenant Colonel Tiffany M.
Chapman, JA; Captain Bryan A. Osterhage, JA; Captain Joshua B. Fix, JA (on reply
brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Michael E. Korte, JA; Captain Marc B. Sawyer, JA (on brief).


                                   17 November 2017

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

FLEMING, Judge:

       We hold there is not a substantial basis in law or fact to question appellant’s
pleas to conspiracy to commit larceny and larceny because the reasoning behind
United States v. Bolden, 28 M.J. 127 (C.M.A. 1989), has not been changed in light
of United States v. Windsor, 133 S. Ct. 2675 (2013).

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of conspiracy to commit larceny, one
specification of larceny, and one specification of assault consummated by a battery
in violation of Articles 81, 121, and 128 of the Uniform Code of Military Justice, 10
U.S.C. §§ 881, 921, and 928 (2012) [hereinafter UCMJ]. The convening authority
approved the adjudged sentence of a bad-conduct discharge, confinement for four
months, and reduction to the grade of E1. This case is before us for review pursuant
to Article 66, UCMJ. Appellant asserts one assigned error that merits discussion,
but no relief.
WINDHAM—ARMY 20160340

                                    BACKGROUND

       After researching fraudulent marriage and military benefits on his computer,
appellant and Ms. TG married on 13 June 2013 at the Killeen, Texas courthouse. 1
Appellant presented his marriage certificate to Army officials and started receiving
his Basic Allowance for Housing (BAH) entitlement at the with-dependent rate. The
parties commenced living together in a rental house, after appellant moved out of the
barracks and Ms. TG moved out of her trailer, but they maintained separate
bedrooms and engaged in romantic relationships with other people. Appellant
admitted to the military judge he married Ms. TG “for the sole purpose of obtaining
money from the United States.”

       Appellant described his marriage to Ms. TG as a “fake marriage,” a “contract
marriage,” and stated “we did not get married with the intent of being in a
relationship.” The military judge accepted appellant’s plea to conspiracy to commit
larceny of BAH and larceny of BAH. Relying on the Supreme Court’s decision in
Windsor, appellant now asserts there is a substantial basis in law and fact to question
his plea to these two offenses because he was legally married under Texas law and
the federal government must recognize the validity of his state marriage certificate
with respect to BAH entitlements. 2

                               LAW AND DISCUSSION

       A guilty plea will be set aside if there is a substantial basis in law or fact to
question the plea. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)
(citing U.S. v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). A military judge’s
acceptance of a guilty plea is reviewed for an abuse of discretion. United States v.
Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996).

       Section 403 of Title 37, United States Code authorizes some service members
to receive BAH entitlements at the with-dependent rate. A “dependent” includes
“[t]he spouse of a member.” 37 U.S.C § 401(a)(1). Our superior court has long
recognized servicemembers are not entitled to BAH at the with-dependent rate when
they engage in a “sham marriage.” Bolden, 28 M.J. at 130. The Court of Appeals
for the Armed Forces (CAAF) stated “[i]f the claimed ‘dependent’ is a ‘spouse,’


1
 Appellant researched whether he could enter into a “contract marriage” to “get
benefits without actually being involved with a real marriage.”
2
  Appellant was still married to Ms. TG at the time of his trial. For the first time on
appeal, appellant asserts Tex. Ann. Code § 1.101 dictates that his Texas marriage
was valid. While the validity of appellant’s Texas marriage was not discussed at
trial, this court notes that Tex. Ann. Code § 1.101 discusses the marital rules for
those entering a marriage relationship in “good faith.”


                                            2
WINDHAM—ARMY 20160340

then, in our view, Congress did not intend that the term include a person who was
linked to a servicemember by only a sham marriage.” Id. (citing Lutwak v. United
States, 344 U.S. 604 (1953)), for the proposition that the validity of a marriage is
not determinative as to the receipt of immigration status if there is a “sham
marriage”); see also United States v. Phillips, 52 M.J. 268, 272 (C.A.A.F. 2000)
(holding the validity of a marriage under state law is not determinative when a
“sham marriage” exists). “‘Even if the marriage was valid under [state] law,’ our
task would be to ‘inquire whether Congress intended for a servicemember to receive
quarters allowance as a married person if the marriage was a sham.’” United States
v. Hall, 74 M.J. 525, 529 (A.F. Ct. Crim. App. 2014) (quoting Bolden, 28 M.J. at
129-30 (affirming plea to BAH larceny where a marriage was a sham at inception
and making appellant’s decision to later “make a go” of her marriage immaterial)).

       Appellant invites this court to overturn the CAAF’s reasoning in Bolden, in
light of Windsor. Appellant asserts that Windsor invalidates a prior Supreme Court
decision, Lutwak, which was the precedent behind the Bolden court’s decision. This
court, however, declines appellant’s invitation to invalidate Bolden’s reasoning
because it would require an overly broad view and misapplication of Windsor.

       Recently, the Supreme Court held the federal government’s refusal to
recognize the validity of a same-sex marriage recognized by the state of New York
deprived a protected class of their equal protection rights under the Fifth
Amendment. Windsor, 133 S. Ct. at 2696. 3 The Supreme Court held the Defense of
Marriage Act (DOMA), which was “applicable to over 1,000 federal statutes and [a]
whole realm of federal regulations,” was unconstitutional. Id. at 2690. While
Windsor nullified DOMA and its extensive applicability to several federal laws and
regulations, the Supreme Court continued to recognize the “constitutionality of
limited federal laws that regulate the meaning of marriage in order to further federal
policy.” Id. For example, even if a marriage was valid under state law, the federal
government was not required to recognize, for immigration purposes, a marriage
entered into for the sole purpose of procuring a noncitizen’s admission into the
United States. Id. This caveat recognizing the constitutionality of some limited
federal laws to deny federal benefits to the participants of a “sham marriage”
reaffirms the Supreme Court’s reasoning in Lutwak, which dealt directly with a
limited immigration law and the receipt of federal benefits. With Lutwak’s legal
underpinnings reaffirmed by Windsor, this court finds no authority to deviate from
our superior court’s precedent in Bolden.




3
 In Windsor, the state of New York recognized the same-sex marriage in question.
133 S. Ct. at 2683. The Supreme Court noted several other states recognized the
validity of same-sex marriages. Id. at 2689. Windsor did not address if
constitutional protections existed for “sham marriages.”


                                          3
WINDHAM—ARMY 20160340

       This court does not read Windsor to stand for the proposition that the federal
government is completely powerless to administer its own programs and policies
when presented with a “sham marriage.” Further, this court does not interpret
Windsor to grant protected class status and Fifth Amendment equal protection rights
to a class of people, such as appellant, who admittedly enter into a “fake” or
“contract” marriage with the sole intent to defraud the federal government.

       Finding the Bolden decision and its progeny unaffected by Windsor, the issue
at bar is not whether appellant’s Texas marriage certificate is or is not valid and
should be recognized by the federal government, but rather whether appellant’s sole
purpose in entering the marriage was to obtain governmental funds to which he was
not otherwise entitled. The legitimacy of appellant’s Texas marriage is non-
determinative and immaterial to this court’s review of appellant’s case. Bolden, 28
M.J. at 130; Phillips, 52 M.J. at 272 (citation omitted); But see United States v.
Anderson, 2016 CCA LEXIS 529, *5 (Army Ct. Crim. App. 31 Aug. 2016) (finding a
substantial basis in law and fact to question appellant’s plea when the record did not
establish appellant’s singular focus of the marriage was to obtain BAH).

       A review of appellant’s discussion with the military judge makes it
abundantly clear his “sole purpose” in marrying Ms. TG was to obtain a BAH
entitlement at the with-dependent rate. While appellant never said the actual word
“sham,” he readily admitted to the military judge that his marriage was “fake,” a
“contract,” and not “with the intent of being in a relationship.” All of appellant’s
admissions equate to this court finding appellant’s marriage was a “sham” and for
the sole purpose and singular focus of defrauding the federal government.
Considering the entire record, to include the stipulation of fact and appellant’s
providence inquiry responses, there is not a substantial basis in law or fact to
question appellant’s pleas to conspiracy to commit larceny and larceny.

                                   CONCLUSION

      The findings of guilty and sentence are AFFIRMED.

      Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.

                                      FOR
                                    FOR   THE
                                        THE   COURT:
                                            COURT:



                                    JOHN P. TAITT
                                    Chief Deputy Clerk of Court




                                          4
