United States v. Corley

5 M.J. 552

• Court: U.S. Army Court of Military Review
• Decided: March 17, 1978
• Docket: CM 435059
• Status: Published

Opinions

OPINION OF THE COURT

DeFORD, Judge:

The appellant contrary to his pleas, was convicted of multiple charges of conspiracy to commit larceny, larceny, forgery, presenting false claims and solicitation to commit larceny in violation of Articles 81, 121, 123, 132 and 134, respectively, Uniform Code of Military Justice (UCMJ) (10 U.S.C. §§ 881, 921, 923, 932 and 934). He received an approved sentence, that included a bad-conduct discharge, confinement at hard labor for three years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. Our review of the appellant’s case is pursuant to Article 66, UCMJ.

The appellant’s conviction stems from the operation of a fraudulent scheme within the Fort Carson, Colorado finance office where he worked as a clerk. Soldiers were solicited by clerks in the finance office to apply for basic allowances for quarters (BAQ) and separate rations. The solicited soldiers were not married, and as a consequence were not entitled to such payments. The finance clerks would forge the certifying official’s signature which indicated that a soldier’s marital status had been verified and then place a back-dated form in the soldier’s file. The soldier would then inquire as to why he had not received BAQ or separate rations. The clerk processing the complaint would examine the file and determine that the soldier had not been paid by reason of a mistake in the finance office procedures and then prepare a voucher which would result in payment being commenced.

Upon appeal, appellant has alleged numerous assignments of error of which four are worthy of discussion:' (1) the military judge failed to instruct on the issue of uncharged misconduct; (2) the court-martial lacked subject-matter jurisdiction over Charge I and its specification; (3) hearsay evidence of uncharged misconduct was admitted during the sentencing portion of the trial; and, (4) the convening authority abused his discretion in denying appellant’s request for deferment of confinement pending appellate review.

I

Appellant contends that the military judge committed error in refusing a defense request for an instruction on uncharged misconduct on findings. Among the several charges and specifications alleged, Charge V and its specification set forth in part that the appellant falsely altered a marriage certificate substituting the names of Elyah Christopher Mayo, Jr. and Irene Edwards and the date of 26 August for the original entries on the form.

Private Mayo testified that he had been recruited to participate in the fraudulent scheme by the appellant. After the scheme had been started with regard to Mayo’s request for BAQ, a finance clerk had called Mayo’s unit and asked the first sergeant if Mayo was married. As a consequence of this telephone call, the first sergeant requested proof of Mayo’s marriage. Mayo stated that he told the appellant that he had to show proof of his marriage and the appellant had given him the marriage certificate with instructions on how the certificate could be changed to show Mayo’s name, his alleged wife and the date of his supposed marriage.

The appellant testified that he gave the marriage certificate as a favor to Mayo in order that Mayo could continue living off post. He stated that he didn’t know that Mayo intended to use the certificate to secure an illegal BAQ payment.

The thrust of appellant’s testimony was that he gave the marriage certificate to Mayo for the avowed purpose of deceiving his first sergeant. Appellant’s trial defense counsel requested an instruction on uncharged misconduct which was denied by the trial judge.

The requirement that the trial judge instruct sua sponte on the limited purpose for which evidence of other misconduct may be considered is beyond cavil.¹ However, no instruction is required where the alleged misconduct is so intermingled with the crime charged as to form an inseparable transaction.²

Here, the testimony raised by the appellant was offered to show that his act of providing Mayo with the marriage certificate was essentially an innocent act done only to assist a friend. However, that testimony could be construed to at least constitute a disorder to the prejudice of good order and discipline.

We do not believe that the statement of the Court in Grunden, supra, that “when evidence of uncharged misconduct is permitted, nothing short of an instruction will suffice” was meant to change the previous precedent cited below. Even if our construction of Grunden is incorrect, we are nevertheless required to test the error for prejudice.³ *We see no possibility that the court would consider the appellant a bad man on the basis of the aforesaid testimony of the appellant. Accordingly, we do not find error much less the possibility of prejudice.

II

Appellant further contends that the court-martial lacked subject-matter jurisdiction over Charge I and its specification. The substance 'of appellant’s allegation is based upon the premise that the solicitation of Specialist Mayo to file a false claim against the United States occurred away from a military post or reservation under the decision in O’Callahan v. Parker⁴ and Relford v. Commandant.⁵

The record establishes that in the latter part of April 1975, the appellant visited the living quarters of one William Badget and Elyah Mayo. The two men resided off the military reservation of Fort Carson, Colorado.

During the visit the appellant asked Mayo if he desired to get BAQ. Mayo asked for further clarification as to his meaning and the appellant replied “Well, I could fix it up, you know, where you could be getting illegal BAQ and Finance wouldn’t never (sic) find out about it.” Approximately one week later, Mayo telephoned appellant and stated that he needed to talk to him about getting married. Mayo said that the appellant advised he would get some “paperwork” and see him later. The next day, appellant brought a DA Form 3298 (Pros. Ex. 7) to appellant’s apartment which Mayo signed. This form was subsequently used as a substantiating document to support the payment of BAQ and was placed in Mayo’s financial records at Fort Carson.

The issue of service connection requires a careful balancing of the Relford factors to determine “whether the military interest in deterring the offense is distinct from and greater than that of civilian society, and whether the distinct military interest can be vindicated adequately by the civilian courts.”⁶

The record does not disclose whether the appellant’s contacts with Mayo were done during duty hours. However, there is no question that the appellant’s initial contact with Mayo was made off the military reservation. We believe that Relford factors 6, 7, 9, 10 and 11 clearly support military jurisdiction in this case. In addition, we believe that the nine additional considerations stressed in Relford, supra, support a finding of military jurisdiction. As in McCarthy, supra, we believe the foregoing factors indicate a pervasive military interest. The entire criminal venture was developed by soldiers who had associated in their military relationship with intent that their acts in this matter would all lead to commission of larceny from and fraud upon the Army. Accordingly, we hold that military subject-matter jurisdiction existed with regard to Charge I and its specification.⁷

Ill

Appellant further contends that he was prejudiced by the military judge admitting hearsay evidence of uncharged misconduct during the sentencing portion of the trial.

The trial judge over the objection of the defense admitted into evidence Prosecution Exhibit 26, a letter of reprimand without any foundation having been laid to support the authenticity of the document.⁸

The requirement that the prosecution properly authenticate a record kept in the normal course of business is so well known that citations for such a proposition are not required. The trial judge has the primary duty and responsibility to insure that prescribed legal standards are applied concerning the admission of evidence at a court-martial. The government failed to establish the authentication of the document in question and it was not admissible in evidence. This was error. However, not every error results in prejudice to an accused and this error must be tested for that effect.⁹

The document in question raised the issue of the alleged commission of two minor delicts: possession of an unregistered firearm and a speeding offense. In addition, the letter alluded to “turmoil in appellant’s home life” as well as an acknowledgment of appellant’s previous excellent duty performance. On balance, we find that there is little possibility that the foregoing letter would have in any way, contributed to appellant’s sentence. Accordingly, we deem the error harmless.¹⁰

IY

In appellant’s final allegation of error, he contends that the convening authority abused his discretion in denying appellant’s request for deferment.

The appellant’s trial was completed on 11 May 1976 and as noted, the sentence included three years confinement at hard labor with other punishments. Following the trial, appellant was transferred to the United States Disciplinary Barracks on 17 May 1976. The convening authority approved the sentence on 9 August 1976. On 4 October 1976, the appellant filed an application for deferment of the sentence to confinement addressed to the Commander, Combined Arms Center and Fort Leavenworth.

In that application appellant set forth the reasons he desired deferment of confinement. Those reasons are quoted as follows:

“1) Because I can more effectively contribute to the conduct of my appeal and to efforts designed to obtain clemency if I am free from restraint pending judicial finality.

2) Because there is a strong probability that my conviction will be overturned on appeal and no sentence will pertain to me.

3) Because ACMR has sentence reducing power and will probably reduce my sentence significantly. I do not wish to assume the risk of serving more time in prison than is ultimately affirmed on appeal.

4) Because I am neither a danger to the community nor a flight risk and, in my judgment my best interests will be served if I am released pending appeal.”

He also stated that he was not guilty of the offenses charged and set forth the following as the legal basis of the request:

“Appellate defense counsel has yet to thoroughly examine the record of trial in this case, however, the following issues will likely be raised: insufficiency of the evidence to sustain a conviction; denial of due process in that identifications (in and out-of-court) were impermissibly tainted by unfair line-up procedures and there existed a fair risk of misidentification; and the sentence was entirely too severe.”

In addition, appellant stated that he was under investigation for approximately one year and that during the pretrial and trial processing of his case he did not attempt to flee to avoid either trial or the sentence of the court. Appellant points out that his offenses were of a non-violent character and do not suggest any danger to the public if he were released.

He further stated that the appeal of his conviction was based upon substantial errors which were likely to result in significant appellate relief or a reduction in sentence as a result of clemency. The appellant also advised that in the event deferment was granted he planned to aid the conduct of his appeal, request excess leave, attend the University of Northern Colorado, obtain employment and generally work to demonstrate his good character and the absence of any need for further punishment or rehabilitative effort.

Appellant also addressed a letter to the convening authority in which he reiterated in effect that he was not guilty of the offenses as well as other matters.

The command staff judge advocate formally reviewed appellant’s application and advised the convening authority concerning the legal considerations of the case and the convening authority’s responsibility. (See Appendix A).

The convening authority concurred in the staff judge advocate’s opinion and recommendation and denied the appellant’s application.

Following the convening authority’s decision to deny deferment, appellant filed on appeal to The Judge Advocate General of the Army¹¹ which was denied on 26 January 1977.

Thereafter on 7 February 1977, appellant filed in the United States Court of Military Appeals, a Petition for Extraordinary Relief in the Nature of a Writ of Habeas Corpus, Mandamus or Other Appropriate Relief. That Court denied the requested relief by order dated 27 May 1977.¹²

The Constitution of the United States does not preclude post-conviction confinement.¹³ Restraint of personal liberty pending appellate review of a court-martial conviction is authorized under military law.¹⁴ Accordingly, any right to freedom from restraint following conviction and sentence which includes confinement depends upon statutory authority.

The passage of Article 57(d) of the Code did not confer upon an accused any additional advantage to avoid post-conviction restraint pending appellate review. It did, however, confer the right to petition appropriate authority and show that there were existing grounds which would warrant an accused’s release from restraint pending appellate review.

Article 57(d), UCMJ, provides as follows: “(d) On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under his jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may in his sole discretion defer service of the sentence to confinement. The deferment shall terminate when the sentence is ordered executed. The deferment may be rescinded at any time by the officer who granted it or, if the accused is no longer under his jurisdiction, by the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned.”

Paragraph 88f of the Manual¹⁵ provides in part with regard to the decisional process of granting or denying a petition for deferment that “the officers so empowered to defer the service of sentence to confinement should take into consideration all relevant factors in each case and grant or deny deferment based upon the best interests of the accused and the service.” The Manual further advises against granting deferment when an accused represents a danger to the community or when the likelihood exists that he may repeat the offenses or flee to avoid service of his sentence.¹⁶ In addition, the Manual speaks of the discretion to defer confinement as being sole and plenary.

The reported legislative purpose of Article 57(d) of the Code has been previously considered by the courts. (See Appendix C). Article 57(d) originated in the Department of Army as a legislative proposal which was included in the Department of Defense’s legislative proposals forwarded to the second session of the 90th Congress. The Department of Defense proposal was attached as an amendment to HR 15971 when the bill was considered by the Senate. As amended, the bill was subsequently passed by both houses of the Congress with virtually no change in the language incorporated in the proposal when initially forwarded to the Congress. (See Appendix B).

Appendix B indicates that the Department of Defense’s principal reason for proposing Article 59(d) was that a previous study conducted in 1964 and 1965 “showed that an accused whose conviction is ultimately reversed by the Court of Military Appeals probably will have already served his entire sentence to confinement by the time the decision is rendered. If reversal comes earlier at the Board of Review level, the chances are one in three.” The implication necessarily contained in the foregoing statement is that prejudicial legal error must exist in the record of trial of sufficient magnitude to warrant a substantial reduction or reversal of the approved sentence. These views and their necessary implications were forwarded to the Congress and undoubtedly considered.

It appears in the best interest of society that a person who is convicted of a crime by a court of competent jurisdiction should begin serving his sentence at the earliest possible time in order that his rehabilitation and correction can be accomplished and he can be returned as a useful citizen at the earliest possible time.

It is equally in the best interest of both the individual concerned as well as society that a person convicted shall only serve the sentence ultimately determined by courts to be appropriate for the offense committed. However, society has the right to protect itself from those who inflict unlawful acts upon it or otherwise seek to avoid through flight, its punishment for past misdeeds.

In the civil sector, a convicted person does not begin serving his sentence until he is received in confinement pursuant to the judgment of a court of competent jurisdiction.¹⁷ Under the aegis of the Bail Reform Act¹⁸ a convicted person may be released from restraint in a non-capital case upon his own personal recognizance if he is awaiting sentence, or has filed an appeal, or a petition for writ of certiorari. The courts must be able to determine that the conditions of release will reasonably assure that the person will not flee or pose a danger to the community, and that the basis of his appeal is not frivolous or taken for delay.¹⁹

When released, a convicted person molds into the community generally from whence he came. Even if no apparent danger is shown at the time of his release, any potential danger is limited to that small segment of society where his presence is either known or his impact is otherwise felt. He has no capacity to endanger society as a whole.

In the military system, a convicted person’s sentence begins to run on the date it is adjudged regardless of whether he is ordered into or continued in restraint.²⁰ In addition, there is an automatic review of his conviction at either the general court-martial convening authority level or before the appellate military courts. If the Bail Reform Act was applicable to the military,²¹ the automatic release from restraint of a large number of soldiers convicted by courts-martial would require these persons to be reassigned to military units.

It takes little imagination to visualize the impact upon the combat and combat service support elements of the Army of a large number of personnel sentenced to confinement, who lack motivation, discipline, and in some instances, personal control and who have little to look forward to other than a period of confinement and discharge from the service. The consequence of such an act could result in some units of the Army being potentially unable or only marginally able to perform their missions during periods of national emergency. We cannot knowingly forge a chain with potentially weak links to be used in the defense of the nation.

We conclude that the Congress intended that Article 57(d) should be applicable: (1) to those who present no danger to the community; (2) when there is no risk of flight to avoid service of the sentence; (3) where there is a substantial showing that a legal error exists in the record of trial of sufficient magnitude to warrant a substantial reduction in or reversal of the approved sentence; or, (4) where other good and sufficient reasons are set forth which in the interest of justice compel release from restraint pending appellate review.

Congress in its wisdom authorized the convicted soldier to file an application before appropriate authority requesting the statutory relief. We believe that Congress intended that a petitioner set forth the basis which entitles him to such relief as a part of that application. Such a requirement is in conformance with the American Bar Association Standards heretofore mentioned and in the best interests of both the individual and the service. Accordingly, the burden of persuasion is on an appellant to show his entitlement to the statutory relief requested.

Applying the foregoing principles to the case before us, we find that the appellant had been under investigation for more than a year prior to his conviction. The offenses of which he was convicted related to property rights and did not necessarily present a threat or danger to society. In addition, the appellant had not attempted to flee prior to trial.

It is the third criteria where the petitioner fails to substantiate a basis for release from restraint. Appellant alleges that he is not guilty of the offenses of which he was convicted. In addition he alleges that the evidence of record was insufficient to sustain his conviction. The staff judge advocate advised the convening authority under appropriate standards that are consistent with the legislative basis of the statute in question. He further evaluated the appellant’s basis of claimed legal error and determined it was without foundation. We believe his analysis was correct, and petitioner’s other reasons justifying release while laudable in scope, do not in the interest of justice, compel his release from restraint. The general court-martial convening authority did not abuse his discretion in denying appellant’s application for deferment of confinement. Accordingly, we find no error.

The remaining assignments of error have been considered and are deemed to be without merit.

The approved findings of guilty and the sentence are affirmed.

Judge DRIBBEN concurs.

1 . United States v. Grunden, 25 U.S.C.M.A. 327, 54 C.M.R. 1053, 2 M.J. 116 (1977); United States v. Gaiter, 23 U.S.C.M.A. 438, 50 C.M.R. 397, 1 M.J. 54 (1975); United States v. Dixon, 17 U.S.C.M.A. 423, 38 C.M.R. 221 (1968); United States v. Bryant, 12 U.S.C.M.A. 111, 30 C.M.R. 111 (1961). It makes no difference whether the uncharged misconduct is raised by the prosecution or the defense. United States v. Dixon, supra, and the cases cited therein.

2 . United States v. Tobin, 17 U.S.C.M.A. 625, 38 C.M.R. 423 (1968); United States v. Daniels, 37 C.M.R. 878 (A.F.B.R.1967). See also United States v. Sellers, 12 U.S.C.M.A. 262, 30 C.M.R. 262 (1961).

3 . United States v. Lewis, 14 U.S.C.M.A. 79, 33 C.M.R. 291 (1963); United States v. Back, 13 U.S.C.M.A. 568, 33 C.M.R. 100 (1963).

4 . 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969).

5 . 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971).

6 . Schlesinger v. Councilman, 420 U.S. 738, 760, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975); United States v. McCarthy, 25 U.S.C.M.A. 30, 54 C.M.R. 30, 2 M.J. 26 (1976); United States v. Tucker, 24 U.S.C.M.A. 311, 52 C.M.R. 22, 1 (1976); United States v. Black, 24 U.S.C.M.A. 162, 51 C.M.R. 381, 1 M.J. 340 (1976); United States v. Alef, 3 M.J. 414 (C.M.A. 1977).

7 . United States v. Moore, 24 U.S.C.M.A. 293, 52 C.M.R. 4, 1 M.J. 448 (1976); United States v. Henderson, 54 C.M.R. 349, 2 M.J. 1031 (A.C.M.R.1976).

8 . See paragraph 143b (2), Manual for Courts-Martial, United States, 1969 (Revised edition). Government appellate counsel concede the admission into evidence of Prosecution Exhibit 26, was error under the circumstances of this case.

9 . See Article 59(a), UCMJ.

10 . Id.

11 . See paragraph 2-30, AR 27-10, 1 January 1969, as amended.

12 . See Corley v. Thurman, 3 M.J. 192 (C.M.A. 1977), Perry, Judge, dissenting.

13 . Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399 (1967).

14 . Article 13, UCMJ; United States v. Teague, 3 U.S.C.M.A. 317, 12 C.M.R. 73 (1953); Reed v. Ohman, 19 U.S.C.M.A. 110, 41 C.M.R. 110 (1969).

15 . Manual for Courts-Martial, United States, 1969 (Revised edition).

16 . The Manual provisions are essentially in conformity with Section 2.5 of the standards relating to Criminal Appeals of the American Bar Association project on Standards for Criminal Justice which provide as follows:

“2.5 Release pending appeal; stay of execution

(a) When an appeal has been instituted by a convicted defendant after a sentence of imprisonment has been imposed, the question of the appellant’s custody pending final decision on appeal should be reviewed and a fresh determination made by the trial court. The burden of seeking a stay of execution and release may properly be placed on the appellant. The decision of the trial court should be subject to review by an appellate judge or court on the initiative of either the prosecution or the defense.

(b) Release should not be granted unless the court finds that there is no substantial risk the appellant will not appear to answer the judgment following conclusion of the appellate proceedings and that the appellant is not likely to commit a serious crime, intimidate witnesses or otherwise interfere with the administration of justice. In making this determination, the court should take into account the nature of the crime and length of sen-fence imposed as well as the factors relevant to pretrial release.

(c) Execution of a death sentence should be stayed automatically when an appeal is instituted.

(d) Procedural devices can safeguard against dilatory prosecution of appeals where such problems may be found. A provision that release is conditioned upon appellants’ perfecting their appeals promptly after notice of appeal insures against delay in the commencement of appeals. A provision for termination of the release after a period sufficient to permit cases to be argued or submitted to the appellate court in normal course guards against lack of diligence in preparation of briefs and records. Such limitations, if used, should be subject to extension where circumstances justify longer periods.

(e) In a jurisdiction with an intermediate appellate court, when review in the highest court is sought by a defendant-appellant, the question of his custody pending decision by the highest court may be redetermined by the intermediate appellate court or a judge thereof. When review is sought by the prosecution, standards relevant to custody of defendants pending prosecution appeal from trial court decisions should be applied. Decisions at the intermediate court level should be subject to review by the highest court.”

17 . 18 U.S.C.A. § 3568.

18 . 18 U.S.C. §§ 3141-3152. The Bail Reform Act is not applicable to the military forces. Collier v. United States, supra at 116 and the cases cited therein.

19 . 18 U.S.C. § 3148; 18 U.S.C. § 3146.

20 . See Article 57(b), UCMJ.

21 . See footnote 18.