United States v. Albrecht

43 M.J. 65, 1995 CAAF LEXIS 115, 1995 WL 571705
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 27, 1995
DocketNo. 94-0510; CMR No. 29749
StatusPublished
Cited by18 cases

This text of 43 M.J. 65 (United States v. Albrecht) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Albrecht, 43 M.J. 65, 1995 CAAF LEXIS 115, 1995 WL 571705 (Ark. 1995).

Opinion

Opinion of the Court

WISS, Judge:

1. Upon provident pleas of guilty, a general court-martial composed of a military judge alone convicted appellant of stealing personal checks, falsely making the stolen checks payable to himself, and knowingly uttering those falsely made checks to the credit union (2 specifications each), in violation of Articles 121 and 123, Uniform Code of Military Justice, 10 USC §§ 921 and 923, respectively. The military judge sentenced appellant to a bad-conduct discharge, confinement for 8 months, and reduction to the [66]*66lowest enlisted grade. The convening authority approved these results, and the Court of Military Review1 affirmed them by a divided vote. 38 MJ 627 (1993).

2. On appellant’s petition, this Court granted review of the following issue:

WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED (CHIEF JUDGE DIXON DISSENTING) BY MISAPPLYING UNITED STATES V TETERS AND HOLDING THAT TWO SPECIFICATIONS OF FORGING CHECKS BY MAKING UNDER ARTICLE 123, UCMJ, AND TWO SPECIFICATIONS OF FORGING THE SAME CHECKS IN THE SAME TIME AND PLACE BY UTTERING UNDER ARTICLE 123, UCMJ, WERE NOT MULTI-PLICIOUS FOR FINDINGS.

We hold that the court below did not err.

I

3. A stipulation of fact, admitted in support of the tendered pleas, indicates that appellant stole three checks each from Sergeant Scott Robinson and Airman First Class Joseph Dicesare. They had presigned personal checks and had entrusted them to Mends to pay their bills while they were deployed in Operation Desert Shield/Desert Storm. Appellant wrote his name as payee and the payable amount on each of the six checks and uttered them at the local credit .union. The total proceeds were $480.00.

4. The Government charged the larceny of Robinson’s checks and the larceny of Dicesare’s checks in two separate specifications. Aso, it charged appellant with making Robinson’s three checks and with uttering those three checks in separate specifications (specifications 1 and 2 of Charge II), and it treated the making and uttering of Dicesare’s three checks similarly (specifications 3 and 4 of Charge II).

5. During the providence inquiry, appellant acknowledged that, when he stole the checks, he “intended to use them to write values to them.” Appellant explained his falsely making the first three checks as follows:

Between 4 February 1991 and 25 February 1991.1 made three writings upon checks I had previously taken from SSgt Scott Robinson. That is, I wrote my name on the checks where it states “pay to the order of.” I knew that these writings if genuine, would impose a legal liability upon SSgt Robinson when they were uttered, which I intended to do. When I filled my name in on these checks, I did so with the intent to defraud, that is to obtain something of value by misrepresenting Scott Robinson— while misrepresenting SSgt Robinson had written them to me.

Appellant continued, explaining his having uttered those three checks:

Between 4 February 1991 and 25 February 1991.1 made three writings, that is I wrote my name as payee upon checks I had previously taken from SSgt Scott Robinson. I knew that these writings, if genuine, would impose legal liability upon SSgt Scott Robinson when they were uttered. I subsequently uttered these checks to the Eglin Federal Credit Union. When I uttered these checks, I was aware that I had falsely made myself as payee on the checks, but nonetheless uttered them to obtain something of value through misrepresentation.

Appellant similarly explained the circumstances involving Dicesare’s three checks. Responding to inquiry from the military judge, appellant indicated that, as to each of the six checks, he made the check and then took it to the credit union and uttered it on “the same day.”

6. After the military judge had entered findings of guilty and had heard relevant sentencing evidence, he granted a contested defense motion to treat each making as multiplicious for sentencing purposes with each uttering. The defense, however, made no Mai motion that contended there was multiplicity for findings.

7. Notwithstanding, appellant urged in the Court of Military Review that each making and each uttering together constitutes [67]*67only one crime of forgery under the UCMJ. A majority of that court, with Chief Judge Dixon dissenting in part, rebuffed him, relying on the rationale of United States v. Teters, 37 MJ 370 (CMA 1993), cert denied, — U.S. -, 114 S.Ct. 919, 127 L.Ed.2d 213 (1994); and he has renewed his claim before us.

II

8. Both the majority and the partial dissenter in the Court of Military Review recognized that, in Teters, this Court articulated the controlling standard generally applicable to determine whether two specifications are multiplicious. As Chief Judge Dixon put it:

In Teters, our highest appellate court recognizes the constitutional power of Congress to define Federal military offenses and prescribe their punishments. Abandoning prior precedent, it adopts the intent of Congress as the controlling factor for determining whether a military accused may receive multiple convictions and punishments for the same act or course of conduct. When separate statutes are involved, Teters notes that the Supreme Court uses the rule of construction found in Blockburger v. United States, 284 U.S. 299, [304,] 52 S.Ct. 180, [182,] 76 L.Ed. 306 [,309] (1932), to discern congressional intent.
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional[2] fact which the other does not.

38 MJ at 631.

9. Thus, the key to a question of multiplicity is the oft-sought-after but frequently elusive intent of Congress. United States v. Teters, supra at 376-77. Where Congress somehow has expressed its intent in this regard, the question easily is answered. Where Congress has not expressly done so, however, we invoke certain logical assumptions in order to infer it.

10. We begin by assuming that Congress “does not intend to [twice] punish the same offense under two different statutes.” See Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980). So, where two separate statutory provisions are involved, we determine whether there actually is only one offense by applying the separate-elements test: Where all of the elements of one are included within the elements of the other, the first is multiplicious with the second. United States v. Teters, supra; see also United States v. Foster, 40 MJ 140 (CMA 1994) (elements in one offense that are legally less serious than elements of the other offense are included within the latter). Otherwise, however, the assumption is that Congress intended that the violation of each statutory provision be separately charged and punished.

11. But what about the situation in which the same statutory provision is the basis of both

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Cite This Page — Counsel Stack

Bluebook (online)
43 M.J. 65, 1995 CAAF LEXIS 115, 1995 WL 571705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-albrecht-armfor-1995.