United States v. Bulger

41 M.J. 194, 1994 CMA LEXIS 135, 1994 WL 667184

• Court: United States Court of Military Appeals
• Decided: September 30, 1994
• Docket: No. 93-0854; CMR No. 920359
• Status: Published

Opinions

Opinion of the Court

WISS, Judge:

Appellant was tried by a general court-martial composed of officer and enlisted members at Naval Base, Norfolk, Virginia. Contrary to his pleas, he was found guilty of making a false official statement and larceny, in violation of Articles 107 and 121, Uniform Code of Military Justice, 10 USC §§ 907 and 921, respectively. Appellant was acquitted of a charge of bigamy under Article 134, UCMJ, 10 USC § 934. He was sentenced to a bad-conduct discharge, confinement for 90 days, reduction to E-l, and a fine of $5,000.00 and to be further confined until the fine was paid but not more than 1 year. The convening authority approved the sentence as adjudged except for the confinement contingent upon paying the fine. The Court of Military Review affirmed. 36 MJ 1031 (1993).

This Court granted review on the following issues:

I

WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW BY AFFIRMING APPELLANT’S CONVICTION FOR LARCENY OF GOVERNMENT FUNDS SINCE APPELLANT WAS MARRIED DURING THE ENTIRE PERIOD THAT HE RECEIVED MARRIED HOUSING ALLOWANCE.

II

WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW ABUSED ITS DISCRETION BY RELYING ALMOST ENTIRELY ON EVIDENCE OUTSIDE THE RECORD OF TRIAL TO AFFIRM APPELLANT’S CONVICTION AS A MATTER OF LAW FOR LARCENY.

Ill

WHETHER THE EVIDENCE WAS SUFFICIENT AS A MATTER OF LAW FOR THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW TO AFFIRM APPELLANT’S CONVICTION FOR LARCENY OF GOVERNMENT FUNDS.

Although appellant was prosecuted only for misconduct during his second enlistment, events arising during appellant’s first enlistment in the Navy in 1980 are relevant. During this enlistment, appellant married Teresa Eisele on August 24, 1983. Throughout the remainder of his enlistment he received Basie Allowance for Quarters (BAQ) at the with-dependent rate and a Variable Housing Allowance (VHA). Appellant testified that in the summer of 1984, he and Teresa separated; he completed part of a petition for summary dissolution of their marriage and gave her money to file the petition; and he terminated paying any support for her. Thereafter, he had no contact with her prior to his discharge from the Navy in January 1989, although he unsuccessfully tried to reach her at numerous times primarily though her mother in Wisconsin.

In February 1989, when reenlisting, appellant executed a Record of Emergency Data/Dependency Application, NAVPERS 1070/602R (hereafter “Page Two”), listing Teresa as his wife and answering “YES” to the question, “IS SPOUSE DEPENDENT?” He also stated her specific address was in Wisconsin, which was her mother’s home. Appellant testified that he did not know where his wife actually was living, “had not been providing support to” her “since 1984, and thought the marriage might have been terminated.” To explain his actions, appellant asserted that the “recruiter told him ... to list” Teresa as his wife “because he did not have affirmative evidence of a divorce or dissolution.” 36 MJ at 1032. The larceny charge arises from his receipt of BAQ at the “with dependents” rate and VHA from February until December 1989 in the amount of $4,535.74.¹

In the first granted issue appellant in effect asserts that, as he actually was married throughout 1989 to Teresa, he cannot be guilty of larceny of BAQ and VHA, notwithstanding his intentionally not paying support to his separated wife. We disagree.

Appellant’s marital status alone did not establish his entitlement to BAQ and VHA at the higher “with dependent” rate. In United States v. Antonelli, 35 MJ 122, 127-28 (CMA 1992), this Court stated:

The allowances in question [VHA and BAQ at the higher “with dependent” rate] were property of the United States that had been delivered to Antonelli solely to defray the financial burden of supporting a dependent child. Such an allowance is not salary and is clearly distinguishable from salary. Inasmuch as Antonelli was in fact not paying support for his daughter, he was not entitled to the allowances therefor; thus, those monies remained the lawful property of the United States.

Thus, entitlement to BAQ and VHA at the higher “with dependent” rate is premised on establishment of the “dependent” and a servicemember’s support of the dependent. See id.

It is uncontested that appellant in fact did not provide support to his estranged wife. Appellant admitted that he received BAQ at the “with dependents” rate and VHA from February until December 1989 in the amount of about $4,500 and that he did not make payments to his wife. Instead, he sent this money to his mother. Therefore, appellant’s intentionally not paying support to his separated wife made him vulnerable to this prosecution, notwithstanding his lawful marriage throughout 1989 to Teresa.²

Having established that appellant was not entitled to BAQ at the “with dependents” rate and to VHA during the charged period of February through December 1989 in the amount of $4,535.74, the question remains whether the evidence legally supports appellant’s conviction for larceny — the question raised in Issue III. In reviewing the sufficiency of the evidence, this Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

“[T]o prove the charged larceny, the prosecution must show that the accused wrongfully took, obtained, or withheld the property in question with the requisite intent.” United States v. Antonelli, 35 MJ at 127. Unlike Antonelli, where the prosecution had relied in part on a wrongful-withholding theory of larceny, here the prosecution presented a wrongful-obtaining theory of larceny, and the military judge properly instructed the members concerning obtaining by false pretenses.³

Paragraph 46(c)(1)(e), Part IV, Manual of Courts-Martial, United States, 1984, states in part:

A false pretense is a false representation of past or existing fact. In addition to other kinds of facts, the fact falsely represented by a person may be that person’s or another’s power, authority, or intention. Thus, a false representation by a person that that person presently intends to perform a certain act in the future is a false representation of an existing fact — the intention — and thus a false pretense. Although the pretense need not be the sole cause inducing the owner to part with the property, it must be an effective and intentional cause of the obtaining....

In this case, the principal prosecution document offered to prove the false representation was the Page Two effective February 6, 1989. Two of the representations in this document that trigger the entitlement are that the member is married and that his spouse is a dependent. Since appellant declared his wife was a dependent in order to obtain the increased entitlements, his statement that she was a dependent actually was his representation of a then-present intention to pay for her support.⁴ Thus, left for us to determine is whether there was legally sufficient evidence that appellant misrepresented that then-existing intention.

Appellant’s intentionally not paying support to his wife since their separation in 1984 and, instead, making these payments to his mother is circumstantial evidence that he never intended to pay support for his wife and that his declaration of his intention to support his wife as a dependent on the Page Two was false. We view appellant’s misrepresentation of his then-present state of mind to be like the misrepresentation of any other material fact and, accordingly, hold that this misrepresentation is sufficient to support the larceny conviction of obtaining by false pretense. See United States v. Cummins, 9 USCMA 669, 26 CMR 449 (1958).

Moreover, appellant also falsely entered an address for Theresa, when in fact he had no idea where she actually was. As this was required information on the Page Two, this was another essential fact to trigger appellant’s entitlement. We agree with the majority below that “the falsity of that response alone was sufficient to support the appellant’s conviction on a wrongfully obtaining theory of larceny.” 36 MJ at 1037.

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.

Judges COX, CRAWFORD, and GIERKE concur.

1 . This misconduct was just the beginning of appellant’s problems. Appellant testified that, during the summer of 1989, appellant's mother told him that Teresa had informed her that she had remarried. Appellant testified that, relying on this information and concluding that his first marriage had been terminated, he married Elizabeth Mason in December 1989. However, in January 1991, appellant spoke with Teresa, who disclosed that “she had never filed the petition for dissolution and their marriage ... had never been terminated.” Nonetheless, on March 27, 1991, appellant submitted a new Page Two listing Elizabeth as his wife since August 27, 1983; stating that he previously had not been married; and adding his and Elizabeth’s child as a dependent. Appellant’s execution of this Page Two was the basis of the false-statement charge. 36 MJ 1031, 1033 (NMCMR 1993).

2 . Our resolution of Issue I renders Issue II moot. Appellant's admission at trial that he did not pay support for his wife, 36 MJ at 1032, was adequate basis for the Court of Military Review's conclusion that "during the period of time alleged in the larceny charge the appellant was not entitled to BAQ at the with-dependent rate.” 36 MJ at 1036. See United States v. Antonelli, 35 MJ 122 (CMA 1992). Accordingly, it is unnecessary for us to consider the reliance by the court below on administrative regulations as authority to support this conclusion.

3 . In Antonelli, appellant did not contest the correctness of his conviction for that portion of the larceny charge based on larceny by false pretenses. He challenged only the larceny offenses of wrongfully withholding. 35 MJ at 123.

4 . The Government presented this misrepresentation theory to the members in trial counsel’s argument that the effect of appellant’s presenting his marriage certificate to Teresa to fill out the Page Two correctly and his signing this form was to assert, " ‘There's my wife. I’m still supporting her. She’s my dependent.’ ” (Emphasis added.)