United States v. Bessette

4 M.J. 736, 1978 CMR LEXIS 782

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: January 13, 1978
• Docket: NCM 77 1162
• Status: Published

Opinions

GRANGER, Judge:

Chief Warrant Officer 2 Bessette was convicted of stealing and wrongfully selling Government property on two occasions, and stealing and attempting to sell Government property on another occasion. He was sentenced to dismissal from the Naval service.

He was the Launch and Recovery Officer for MABS-13, a subordinate squadron of Marine Air Group 13, 3d Marine Aircraft Wing at Marine Corps Air Station, El Toro, California. In early 1976, he was instructed by his squadron commander to arrange through the Wing SATS Officer or, in his absence, the Wing SATS Chief, to dispose of scrap aluminum matting in the squadron area.

Rectangular sheets of aluminum matting, 2 feet wide, either 6 or 12 feet long, and about 2 inches thick, are interlocked to form aircraft runway surfaces. Each 2 X 12-foot sheet weighs about 144 pound's. Bent, torn, or otherwise deteriorated matting can no longer serve its primary purpose, but is useful as hard surface for equipment storage, bulwark for excavations, and pathways in muddy areas, among other possible uses. It would rarely have no utilitarian value to the Marine Corps.

Because of the high cost of such matting, its disposal is strictly controlled. Permission to dispose of scrap matting must be obtained from the Naval Air Systems Command (NAVAIRSYSCOM), the responsible Governmental agency. The request for such authority originates with the squadron, is forwarded via the group and wing commander, through Headquarters, Marine Corps, then to NAVAIRSYSCOM.

The persons on the 3d Marine Aircraft Wing staff having cognizance of disposal procedures and who advise and assist subordinate military organizations in these matters are the Wing Engineer and his subordinate, the Wing SATS Officer. Both of these officers testified, as did the Launch and Recovery Maintenance Officer from another squadron. All testified that aluminum matting should not be disposed of without permission of NAVAIRSYSCOM.

Appellant testified that, shortly after assuming duties as Launch and Recovery Officer in April 1975, he had become aware that a civilian junk dealer frequently came aboard the air station and picked up scrap metal, and he had contacted the Wing SATS Officer who told him that giving scrap material to this dealer was a legitimate way to dispose of it.

Almost 1 year later, confronted with the problem of disposing of the aluminum matting, he discussed the situation with his noncommissioned officer-in-charge and a newly-arrived noncommissioned officer who was replacing this NCOIC. Material turned in to the local on-base military salvage unit had to be palletized and administratively processed. This preparation consumed time and manpower he could ill-afford. On the other hand, he reasoned, he did not want to give the scrap aluminum to the civilian dealer, George the junkman, because he preferred that any profit derived from this material benefit military personnel in his organization. His NCOIC suggested taking the matting off base and selling it to a different civilian dealer.

Appellant discussed this matter with his roommate, a noncommissioned officer experienced in the supply field, who told him the Group Supply Officer had sold some scrap paper material and used the proceeds for the squadron coffee mess fund. Appellant confirmed this by calling the Group Supply Office and receiving the same information from a sergeant working there.

After these inquiries, appellant approved the plan of his NCOIC, which was that two civilians would come aboard the station in a rented civilian truck, pick up the matting, and sell it in the civilian community for approximately 17 cents per pound.

On 20 May 1976, these plans were carried out. Almost 9,000 pounds of matting were taken off base and sold for $1,776.00. The proceeds were divided, with roughly one-fifth going to each civilian and the NCOIC, and two-fifths to appellant, one-fifth of which was intended for the coffee mess fund. The incoming NCOIC was given $100.00 by appellant.

On 3 June 1976, this operation was repeated, with the assent of appellant, and 9,870 pounds of matting were sold for $1,974.00. Later the same day, a third load of matting was intercepted, en route to the civilian dealer, by law enforcement officers. This matting weighed 9,782 pounds.

The evidence against appellant was compelling. His sworn confession was introduced in which he detailed the plan to have two civilians take the matting off base and sell it; described that the money would be split between some civilians, his NCOIC and himself; told of giving part of the proceeds to another member of his command who was aware of the transaction, but who shortly gave the money back to appellant “because he said his conscience was bothering him and he did not want to be involved”; and told of being approached by other men in his command who knew of the first sale and “wanted to help in any future deals and that they wanted a share of the profits.” His confession concludes:

I knew that the matting was government property and I knew that we were stealing that property. I did not think that it was very serious because the matting was being disposed of anyway.

On the 18th or 19th of May, I was aware of a plan to steal some excess U. S. Government property in the form of aluminum matting from the MABS-13 area at MCAS El Toro, California. On 20 May 1976, I was aware of the theft of this property and I received $430 as my portion of the sale of the matting. I gave $100 of this to SGT YOUMANS, and on 28 May 1976, I deposited $430 in my checking account at Santiago Bank, Tustin, Ca as SGT YOUMANS had given me back the $100. On 2 June 1976, I was aware of the theft of another quantity of matting which was planned from [sic] 3 June 1976. On 3 June 1976, I was aware that the theft was taking place of aluminum matting and I observed some of it being loaded on a truck. I knew the matting was government property and I knew we were stealing that property. I do not know how much I was going to get today.

Appellant’s confession was amply corroborated by one of his own witnesses, who was a principal in these crimes, and by a Government witness. The latter described how the proceeds were to be broken into fifths, with one-fifth going to each of two civilian confederates, one-fifth to the military confederate, one-fifth to appellant, and one-fifth to the unit coffee mess fund. Testimony of another witness supports this division of the profits.

Appellant testified on the merits and attempted to discount incriminating portions of his confession as the work of law enforcement officers putting words in his mouth. The theory of his defense was that he participated in the taking and sale of the property, but he was not criminally responsible because he believed what he did was lawful and therefore lacked the requisite criminal intent. His belief was predicated upon the information he received that the Group Supply Officer sold some scrap paper to a civilian firm and used the proceeds to maintain the organization’s coffee mess. He did not testify that he was told this procedure was lawful, or that anyone told him he was authorized to sell scrap material to anyone. He reasoned, however, that the Group Supply Officer possessed expertise in this area and this officer had placed his imprimatur on that method of disposal; consequently, such disposal must be permissible.

Staff Sergeant Englert, appellant’s former roommate who was not associated with these offenses, testified that he had extensive experience in the supply field; that appellant asked his advice as to how the matting could be disposed of; and that, during that conversation, he told appellant that he should contact the Group Supply Officer, because IBM paper and data processing cards had been sold and the proceeds used to support the coffee mess fund.

Appellant testified he did not know how much was received for the matting, and he did not know that the proceeds of the sale had been divided into fifths. He did not know how much his NCOIC took out of the proceeds, and he thought the two civilians received $100.00 each for the transaction on 20 May. He further testified that he did not intend to profit from this venture, and that the money he received was for the unit coffee mess fund. He put this money in his personal checking account for safe keeping.

To support his defense that he believed what he did was proper, appellant sought to introduce proof that what he heard was true; that is, that the Group Supply Officer actually had sold scrap material to civilians and used the proceeds for the squadron welfare fund. The trial judge refused to admit into evidence a written statement of the Group Supply Officer in which these facts were admitted. Appellant contends that the exclusion of this statement was reversible error.

The statement of the Group Supply Officer described how waste paper was sold to a civilian concern and the proceeds placed in a special squadron bank account and expended only for troop morale in augmentation of special services funds. Disbursements had to be authorized by Squadron Headquarters and all checks drawn and signed by the Group Supply Officer. The sale of the paper was authorized by the squadron commanding officer.

Whether such evidence is admissible is a close legal question. The theory of appellant’s case was that he lacked criminal intent because he believed what he did was lawful. His belief was predicated upon what he heard, not what he knew. Whether the Group Supply Officer actually sold Government property has no direct bearing on whether appellant believed he did. Cases in other jurisdictions have held such evidence inadmissible.

In People v. Hurtado, 63 Cal. 288 (1883), the wife of a defendant charged with murder testified that she had confessed to her husband that she had been guilty of adultery with the deceased, and that this had great emotional impact upon the defendant. To corroborate the fact that his wife had told him of her adultery with the deceased, the defendant offered evidence tending to prove the adultery. The court refused to permit the evidence, stating that evidence that she had committed adultery would not tend to prove she confessed to her husband that she had committed adultery.

People v. Webster, 139 N.Y. 73, 34 N.E. 730 (1893) is another homicide case. The justification was self defense. Defendant’s wife testified that just before the killing she told her husband the deceased had made improper advances toward her. The court permitted evidence of what she had told her husband, but would not permit proof of what actually transpired between the wife and the deceased, stating that the only material thing was the communication, and it was entirely immaterial whether the things disclosed actually happened. This reasoning was quoted with approval on appeal.

See also some of the cases cited in II Wigmore on Evidence § 263 at 84 (3d ed. 1940), which hold that the prosecution may not prove the nonexistence of facts allegedly communicated; General Dynamics Corp. v. SELB Manufacturing Company, 481 F.2d 1204 (8th Cir. 1973); and the military cases of United States v. Voorhees, 4 U.S.C.M.A. 509, 544, 16 C.M.R. 83, 118 (1954) (dissenting opinion) and United States v. Skeen, 16 C.M.R. 754, 757 (A.F.B.R.1954) (general discussion).

Dean Wigmore points out that the objective truth of the fact reported may be relevant when the nonexistence of the fact is offered as tending to show that the witness testifying to the communication of the alleged fact is not testifying truthfully:

For example, on a prosecution for murder, the defence being insanity caused by brooding over the deceased’s persistent pursuit of the virtue of the defendant’s wife, suppose that the defendant’s wife testifies in his behalf to numerous reports, made by her to the defendant, of the deceased’s attempts to seduce her; now if it could be shown indubitably that such attempts upon the witness never took place, would this not make it less likely that the alleged communications of them were made by her? [II Wigmore, supra.]

See also Knapp v. State, 168 Ind. 153, 79 N.E. 1076 (1907).

There is a distinction between offering the nonexistence of a fact as evidence tending to refute the assertion that the fact was communicated to another, as in Dean Wig-more’s example above, and offering the existence of a fact as evidence tending to support the assertion that the fact was communicated, as was done in this case and in Hurtado and Webster, both supra. The latter evidence would seem to have less probative value. It is, nevertheless, more likely that one inquiring whether a fact exists will receive an affirmative answer if the fact really did exist.

Relevant evidence is defined as evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed.R.Evid. 401; see United States v. Boyd, 7 U.S.C.M.A. 380, 384, 22 C.M.R. 170, 174 (1956). Evidence that the Group Supply Officer had, in fact, sold scrap material to civilians tends to make it more probable that others told appellant of this when he inquired about it; which tends to make it more probable that appellant believed the Group Supply Officer did this; which gives rise to the inference that if the Group Supply Officer did it, it was proper; which supports appellant’s defense that he lacked the requisite criminal intent because he believed his action was legal. Despite the old case law to the contrary, we therefore find that the Group Supply Officer’s statement was relevant. We have found it necessary to analyze this issue at some length in order to establish that the evidence at issue is weak, circumstantial evidence of very little probative value and is relevant solely as tending to prove a remote point, several steps removed from appellant’s defense. This becomes important in assessing the record to determine whether the exclusion of this evidence was prejudicial.

We do not, however, believe that the trial judge erred in excluding the statement of the Group Supply Officer. This was weak evidence, inferentially corroborating appellant’s testimony that was already corroborated by strong, direct evidence in the form of Staff Sergeant Englert’s testimony discussed above. It was cumulative, at best. Its probative value was substantially outweighed by the danger that it would confuse the issues and induce a verdict on a purely emotional basis: It is not unlikely that the members would have concluded from this evidence that, if another had broken the law and gone unpunished, appellant should not be convicted or punished either. The statement was not admissible for this purpose. As this Court stated in United States v. Purcell, No. 72 1457 (N.C.M.R. 19 Sept. 1972) (slip opinion at 3):

It is now virtually hornbook law that sentences awarded in other cases are inadmissible in a case then at bar since an accused should not be measured by another person’s criminal conduct. United States v. King, 12 U.S.C.M.A. 71, 30 C.M.R. 71 (1960). It would be even less appropriate to bring to the attention of the court administrative determinations in the disposition of similar cases.

See also United States v. Voorhees and United States v. Skeen, both supra. The trial judge could properly exclude such remote, confusing, misleading and cumulative evidence, Fed.R.Evid. 403, and we hold that he committed no error when he did so.

Conceding, arguendo, that the statement should have been admitted, its exclusion was harmless error.

The proffered evidence merely tended to show that appellant had heard of the Group Supply Officer’s activities. Accepting that as a fact, the evidence overwhelmingly refutes his lack of criminal intent. His sworn confession admitted his criminal complicity and mentions nothing about his belief that what he did was legal. The confederacy with the civilians, the use of a rented civilian truck, the division of the proceeds, the gift of $100.00 to another who was aware of the transaction, the return of this money— all these facts tend to show that this was not the work of individuals who considered this proper military activity.

Appellant places great importance upon his inquiries into disposal practices prior to his approval of the plan. His investigation tends to support his guilt rather than his innocence, however. Although the record shows that he frequently sought technical advice from the Wing Engineer’s Office, on this occasion appellant did not ask if his scheme was lawful and permissible. He did not seek authority to sell the matting. He merely inquired into the Group Supply Officer’s activities. He sought advice not from the officers officially cognizant of such matters, but from enlisted men with no authority to give him the permission he needed. His efforts comport more closely with the conduct of one seeking an excuse to knowingly break the law, rather than one earnestly trying to avoid such transgressions.

Appellant is a warrant officer with over 10 years military experience and a GCT of 132. His testimony that he did not know of the distribution of the proceeds or the amount of money received for the matting is difficult to believe. If his sense of duty as officer-in-charge of this operation would not lead him to inquire as to these matters, normal curiosity should.

Considering all the evidence, it substantiates the truth of appellant’s confession and refutes his asserted defense. The evidence of his guilt is overwhelming. The evidence which was excluded was circumstantial evidence from which only a weak inference could be drawn. There was direct evidence on this same point, not only in the form of appellant’s testimony, but also from a witness unconnected with these offenses. The Government did not contest appellant’s assertion that he had heard that the Group Supply Officer had sold scrap material to civilians.

Further, owing to the contents of the proffered statement, it is likely that it would have done appellant more harm than good. The stark contrast between this command-approved, well-regulated practice which benefited squadron personnel generally and afforded no personal profit, albeit improper, and appellant’s patently illegal operation might well have been damaging to appellant’s case.

There is no fair risk that the exclusion of this evidence harmed appellant or led to findings or a sentence different from that he would have received if the evidence had been admitted.

We have examined appellant’s other assignments of error and the Government’s reply thereto and have concluded that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Accordingly, the findings and sentence as approved on review below are affirmed.

Judge GLADIS concurs.