United States v. Albrecht

38 M.J. 627, 1993 CMR LEXIS 563, 1993 WL 478286
CourtU S Air Force Court of Military Review
DecidedNovember 18, 1993
DocketACM 29749
StatusPublished
Cited by4 cases

This text of 38 M.J. 627 (United States v. Albrecht) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review 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, 38 M.J. 627, 1993 CMR LEXIS 563, 1993 WL 478286 (usafctmilrev 1993).

Opinions

OPINION OF THE COURT

PEARSON, Judge:

A general court-martial composed of a military judge sitting alone convicted Airman First Class Albrecht, in accordance with his pleas, of stealing personal checks from two other Air Force members, falsely making the checks out to himself for a total of $480, and uttering the checks to a credit union for cash, in violation of Articles 121 and 123, Uniform Code of Military Justice (UCMJ). The court sentenced him to a bad conduct discharge, confinement for 8 months, and reduction to E-l, which the convening authority approved as adjudged.

On appeal, Airman Albrecht asserts his plea of guilty to stealing checks was improvident, the specifications alleging the false making of the checks were multiplicious for findings with the specifications alleging their false uttering, and the sentence is too severe. We determine otherwise and affirm.

FACTS

Airman Albrecht, a 21-year-old C-130 crew chief, stole six checks from two coworkers who were deployed to OPERATION DESERT SHIELD/STORM. The coworkers left the checks behind pre-signed so someone else could pay their bills in their absence. Airman Albrecht filled the checks out in various amounts with his name as payee and cashed them on different days at the base credit union. He repaid the co-workers upon their return from deployment.

PROVIDENCY OF PLEA

In an unsworn statement during sentencing, Airman Albrecht said he intended to repay his victims when “he took the money.” He now claims this statement of an intent to repay was inconsistent with a larceny; consequently, his plea of guilty to stealing checks was improvident.

At first blush, Airman Albrecht’s argument appears to have some merit. He took the checks with the intent to complete and cash them, and once he completed the checks, they became negotiable instruments. See United States v. Banfield, 37 M.J. 325 (C.M.A.1993); United States v. Stewart, 1 M.J. 750 (A.F.C.M.R.1975). One who wrongfully takes a negotiable instrument having no value above its face value with the intent to return an equivalent amount of money is not guilty of stealing the instrument’s face value. Instead, the offender is guilty only of wrongfully appro[629]*629priating the face value. MCM, Part IV, paragraph 46c(l)(f)(iii)(B) (1984); United States v. Epperson, 10 U.S.C.M.A. 582, 28 C.M.R. 148 (1959). This principle makes sense: offenders who take checks and other negotiable instruments representing cash should be no worse off under the law of larceny than if they had taken the cash.

However, Airman Albrecht was not charged with stealing completed negotiable instruments. Instead, he was charged with stealing the pieces of paper themselves. He admitted he intended to permanently deprive the victims of the use and benefit of these pieces of paper as he “intended to use them to write values to them.” As pieces of paper, the checks had nominal value and were proper subjects of larceny. United States v. Frost, 22 U.S.C.M.A. 233, 46 C.M.R. 233 (1973); United States v. Windham, 15 U.S.C.M.A. 523, 36 C.M.R. 21 (1965). Consequently, Airman Albrecht’s plea of guilty to larceny was provident. United States v. Clark, 28 M.J. 401 (C.M.A.1989).

MULTIPLICITY

Airman Albrecht was charged in separate but identical specifications with uttering the same checks that he falsely made. During the plea inquiry, he said he uttered each check on the same day he falsely made it. On motion of the defense, the military judge found the making and uttering offenses were multiplicious, that is but one offense, for sentencing purposes. See R.C.M. 1003(c)(1)(C).

On appeal, Airman Albrecht asserts the offenses were multiplicious for findings too, an issue he did not raise at trial. Our court has been reluctant to hold an appellant’s feet to the waiver fire on multiplicity issues when the topic was never even broached at trial. See, e.g., United States v. Warner, 33 M.J. 522 (A.F.C.M.R.1991); United States v. McCoy, 32 M.J. 906 (A.F.C.M.R.1991), pet. denied, 33 M.J. 489 (C.M.A.1991). We will not foreclose appellate review in this case where defense counsel at least raised the issue in some form.

For a number of years, the multiplicity issue was a quagmire that snared a number of trial and appellate, military judges. Struggling with a series of judicially produced yardsticks, judges measured whether the government had treated an accused unfairly for findings or sentencing by taking one act or course of conduct and multiplying it into several criminal charges. Courts often reached different, but logically correct, results when measuring the same set of facts and offenses. See, e.g., United States v. Jobes, 20 M.J. 506 (A.F.C.M.R.1985) (multiplicity for sentencing), pet. denied, 21 M.J. 102 (1985).

Recently, the Court of Military Appeals discarded several of these old multiplicity yardsticks. In United States v. Teters, 37 M.J. 370 (C.M.A.1993), the Court of Military Appeals adopted basically one measurement for determining findings multiplicity when the same act or course of conduct is charged under more than one statute: the elements test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under Teters, an accused may be convicted of multiple statutory violations for the same act or course of conduct where each offense requires proof of an element not included in the other and Congress has not expressed a contrary legislative intent.

Here, Airman Albrecht was not convicted of separate violations of different statutes. Instead, he was convicted of two separate offenses made criminal by the same statute. However, we should still apply Teters’ rationale and look at the elements and legislative intent in resolving the findings multiplicity issue. See Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L. Ed.2d 370 (1957); Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505 (1927); United States v. Guerrero, 28 M.J. 223 (C.M.A.1989).

Congress may lawfully punish the various steps a criminal takes in achieving a particular nefarious goal, as well as the goal itself. Albrecht v. United States, supra; Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1915). Under [630]*630Article 123, UCMJ, Congress specified that one commits “forgery” of a check by either falsely making the check or uttering it knowing of its falsity. While the' ultimate goal of the criminal may be to obtain money or something else of value, one may falsely make a check without cashing it or cash a false check without falsely making it. The offenses contain different elements and one is not a lesser included offense of the other. Moreover, at common law, the offenses were separately ' punishable crimes, and there is absolutely no evidence that Congress intended to change that principle when enacting Article 123. United States v. Gibbons, 11 U.S.C.M.A. 246, 29 C.M.R. 62 (1960); United States v. Mireles, 17 M.J. 781 (A.F.C.M.R.1983); United States v. Murkey, 25 C.M.R. 784 (A.F.C.M.R.1957), pet. denied, 25 C.M.R.

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Bluebook (online)
38 M.J. 627, 1993 CMR LEXIS 563, 1993 WL 478286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-albrecht-usafctmilrev-1993.