United States v. Chapple

36 M.J. 410, 1993 CMA LEXIS 48, 1993 WL 117546
CourtUnited States Court of Military Appeals
DecidedApril 19, 1993
DocketNos. 67,527; NMCM 89-2282
StatusPublished
Cited by12 cases

This text of 36 M.J. 410 (United States v. Chapple) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Chapple, 36 M.J. 410, 1993 CMA LEXIS 48, 1993 WL 117546 (cma 1993).

Opinions

Opinion of the Court

GIERKE, Judge:

A military judge sitting as a special court-martial convicted appellant, contrary to his pleas, of failing to obey a regulation; [411]*411larceny of a checkbook and attempted larceny of $800; and forgery of a check, in violation of Articles 92, 121, 80, and 123, Uniform Code of Military Justice, 10 USC §§ 892, 921, 880, and 923, respectively. The military judge sentenced appellant to a bad-conduct discharge, confinement and forfeiture of $400.00 pay per month for 4 months, and reduction to the lowest enlisted grade. The convening authority approved the sentence.

In an unpublished opinion dated January 31, 1991, the Court of Military Review set aside the findings of guilty of forgery and of attempted larceny1 on the ground of insufficient evidence and reassessed the sentence to provide for a bad-conduct discharge, confinement and forfeiture of $200.00 pay per month for 4 months, and reduction to the lowest enlisted grade.

We granted review of the following issue:

WHETHER THE COMMANDING OFFICER, NAVAL SUPPORT ACTIVITY [NAVSUPPACT], NAPLES, WAS EMPOWERED TO AUTHORIZE A SEARCH OF AN OVERSEAS OFF-BASE APARTMENT WHERE NEITHER APPELLANT NOR THE LESSOR OF THE APARTMENT WERE IN HIS CHAIN OF COMMAND.

On January 5, 1988, several crew members of the USS BELKNAP, including Lieutenant Commander (LCDR) McConahy and Disbursing Clerk (DK3) Dacey, reported that their checks had been stolen and that checks drawn on their accounts had been forged and cashed at the USS BELKNAP disbursing office. The Naval Investigative Service (NIS) initiated an investigation and listed appellant as a suspect since he was assigned to the disbursing office during the time the stolen checks were negotiated. The NIS attempted to interview appellant, but he invoked his right to counsel.

On September 19, 1988, the NIS received the report of a handwriting examiner who opined that there were “strong indications” that appellant had forged one of the stolen checks belonging to DK3 Dacey. On September 22, 1988, appellant, wearing Navy dungarees with “R.A. Chappie” stenciled on the shirt, presented LCDR McConahy’s checkbook to a teller at the Navy Federal Credit Union in Naples, Italy. Appellant told the teller that LCDR McConahy was his boss and that LCDR McConahy had sent him to obtain additional checks. The teller took one of the deposit slips from the checkbook to verify LCDR McConahy’s account, but when she returned appellant had departed the credit union. The teller reported what had happened to the credit union manager, who advised the teller that LCDR McConahy had reported his checks missing and had been transferred from the area approximately 6 months earlier. Appellant’s actions at the credit union were reported to the NIS.

The NIS also learned that appellant lived off-base with his fiance, Radioman Seaman (RMSN) Victoria Johns, in an apartment leased by RMSN Johns from an Italian landlord. Her lease was negotiated and prepared through the housing referral office operated by NAVSUPPACT.

The NIS requested authorization from Captain Paron, USN, Commanding Officer, NAVSUPPACT, to search RMSN Johns’ apartment for the stolen checks. After being provided with an affidavit relating the foregoing information and consulting with his staff judge advocate, Captain Par-on authorized the search. Neither appellant nor RMSN Johns was assigned to NAVSUPPACT. Appellant was assigned to Commander Task Force 63 (CTF 63), and RMSN Johns was assigned to Naval Communications Area Master Station Mediterranean (NAVCAMSMED). However, Captain Paron was designated by Commander-in-Chief United States Naval Forces Europe Instruction (CINCUSNAVEURINST) [412]*4125450.21D as Senior Officer Present (Administration) for Naples (para. 3c) and the local coordinator for the Naples area, with responsibility for supporting both CTF 63 and NAVCAMSMED.

The NIS agents initially did not rely on the search authorization because RMSN Johns executed a written consent to the search of her apartment. However, she was not able to admit the NIS agents into the apartment because she had left her keys in the apartment. The NIS agents brought appellant to the apartment, ordered him to unlock the entrance, searched the apartment, and found the stolen checks.

CINCUSNAVEURINST 5450.21D tasks NAVSUPPACT to provide numerous support functions to station, tenant, and supported activities, including CTF 63 and NAVCAMSMED. According to paragraph 2 of Enclosure (1) to this Instruction, those support functions include the following:

c. Facilities support.
(6) Operate a housing referral office to provide referrals and accompany prospective tenants to housing areas and to assist with utilities and service contracts, lease negotiations, rental agréements and terminations for U.S. personnel and authorized NATO personnel in the Naples and Gaeta areas.
j. Security.
(2) Provide physical security for NAVSUPPACT Naples facilities, installations and aircraft from unauthorized access, sabotage, espionage, theft, or other criminal acts; enforce internal security regulations; investigate crimes and prepare investigation reports; maintain good order and discipline; provide for the safety and security of personnel and property; act as liaison with Italian police.
(3) Provide law enforcement support for NAVSUPPACT Naples compounds and areas to include traffic control and accident investigations.
(4) Provide and maintain Military Working Dog kennels and provide detection services for narcotics and explosives to support activities.
(8) Provide fire prevention and inspection of all buildings utilized by NAVSUPPACT Naples, tenant and supported activities ____
(9) Provide motor vehicle registration in compliance with Italian law____
(10) Operate a central motor vehicle registration office____
(11) Provide a motor vehicle safety program____

At trial, appellant contested Captain Par-on’s authority to authorize a search of the apartment, arguing that Captain Paron was neither RMSN Johns’ commander nor appellant’s, and that he did not have authority over the property, which was a privately-owned apartment leased and occupied by RMSN Johns.

The military judge denied the motion to suppress the fruits of the search. The military judge ruled that RMSN Johns’ consent to the search, “although properly obtained ... was not the means by which the government actually gained entry into the residence.” Because RMSN Johns was unable to unlock the apartment, the military judge considered the validity of her consent “mooted” because the NIS, armed with a search authorization, ordered appellant to unlock the apartment. The military judge ruled that the lawfulness of the search rested on the validity of the search authorization.2 The military judge ruled that Captain Paron had authority to authorize the search because his authority as local coor[413]*413dinator “requires him to operate [a] Housing Referral Office” and to “investigate crimes and prepare investigation reports; maintain good order and discipline; provide for the safety and security of personnel and property____”

MiLR.Evid.

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Cite This Page — Counsel Stack

Bluebook (online)
36 M.J. 410, 1993 CMA LEXIS 48, 1993 WL 117546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-chapple-cma-1993.