United States v. Craig

63 M.J. 611, 2006 CCA LEXIS 121, 2006 WL 1510704
CourtUnited States Air Force Court of Criminal Appeals
DecidedMay 5, 2006
DocketACM S30607
StatusPublished
Cited by1 cases

This text of 63 M.J. 611 (United States v. Craig) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal 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. Craig, 63 M.J. 611, 2006 CCA LEXIS 121, 2006 WL 1510704 (afcca 2006).

Opinion

OPINION OF THE COURT

MATHEWS, Judge:

The appellant was charged with dereliction of duty, willfully damaging military property, and larceny, in violation of Articles 92, 108, and 121, UCMJ, 10 U.S.C. §§ 892, 908, 921. He pled guilty to the dereliction of duty and damaging military property offenses. His pleas on those specifications were provident, and he does not challenge them on appeal.

The appellant pled not guilty to larceny, but was convicted in a trial before officer members and sentenced to a bad-conduct discharge and confinement for 6 months. The convening authority reduced the period of confinement to 4 months, but otherwise approved the findings and sentence as adjudged. On appeal, the appellant avers, inter alia, that the military judge erred by permitting the trial counsel to offer evidence from his providency inquiry during the government’s case-in-chief on the litigated larceny specification. Finding error, we grant relief.1

Background

The appellant was a member of the 48th Security Forces Squadron at RAF Laken-heath, United Kingdom. On the evening of 22 December 2003, the appellant was assigned to patrol the Lakenheath flight line. A member of the appellant’s squadron, Senior Airman (SrA) R, accompanied him. There was a heavy rain that evening, and at some point during the storm the appellant and SrA R decided to abandon their patrol and seek shelter in a nearby building. The building was dilapidated and undergoing renovation; it was full of junk and litter, but provided adequate shelter against the storm. The appellant and SrA R watched movies for about four hours on a portable DVD player they took on patrols.

Before leaving the building to resume their patrol, the appellant and SrA R decided to “practice [their] building clearing technique” [609]*609by going down the main corridor and opening doors to check each room. Where the doors were locked, they kicked them open. This caused damage to the doors, locks, hinges, and frames, totaling more than $4,000. Inside these rooms, they found more trash, but also various other items: furniture, drills, aircraft parts, computer equipment, and a television set. The appellant and SrA R took the television, two computer battery backup power supplies, and a computer chair, of a total value of approximately $550.

Throughout the investigation, and at trial, the appellant maintained that he believed the items he and SrA R took were abandoned property—rubbish destined for the trash bin, along with the rest of the garbage in the building. He admitted during his providency inquiry on the Article 108, UCMJ, specification that he knew the building was government property, but initially described the building as “abandoned” too. The military judge then engaged him in the following colloquy to clarify this point:

MJ: So after you kicked this second door, at least at that point, you knew there’s something secured behind these doors?
ACC: Yes, Sir.
MJ: So at least at that point you knew for certain that the building had some purpose?
ACC: Yes, Sir.
MJ: So even if you’d previously to that thought it’s an old abandoned building in the sense that there is no owner, no use, at least at that point you would have been on notice that it was used for some purpose and owned or managed by somebody?
ACC: Yes, Sir.

At trial, the appellant’s counsel conceded that his client took the property alleged in the larceny specification, but—consistent with his client’s pretrial statements—contended the appellant mistakenly thought the property was abandoned. During cross-examination, the government witnesses acknowledged that this was what the appellant claimed from the very early stages of the investigation. The trial defense counsel also established that the investigation never definitively established who the property belonged to. The items the appellant and SrA R took were not on the inventory lists of the organizations using the building.

After the last government witness testified, the trial counsel sought to play a tape recording of the part of the appellant’s provi-dency inquiry in which the appellant discussed the ownership of the building. The record does not disclose when the trial counsel decided to present this evidence. It is clear, however, he did not discuss it with the trial defense counsel prior to announcing his plan in open court. The military judge instructed the trial defense counsel to “see if you can come to an agreement with trial counsel and that portion that they want to hear,” and promised “an opportunity before we call in the members next to express any concerns with the portion they are wanting to hear.”

There is no discussion on the record regarding what “concerns,” if any, may have troubled the trial defense counsel. After a brief recess, the trial counsel called one more witness, and then went directly to the tape of the appellant’s providency inquiry. There was no opportunity for the trial defense counsel to object out of the presence of the members, but the military judge sua sponte stated his understanding that the portion of the tape to be played was “coordinated with the defense counsel and with the court reporter.” There was no discussion of the threshold question of whether any of the tape should be played at all. After playing it, the government rested.

During argument on findings, the trial counsel relied on the appellant’s admissions concerning the ownership of the building to challenge his claimed mistake of fact concerning ownership of the items inside. The effort to debunk the appellant’s defense took over one-third of the trial counsel’s argument.

Analysis

The military judge set limits on the permissible use of the providency inquiry as follows:

MJ: By your plea of guilty you give up three important rights, but you give up these rights solely with respect to the of-[610]*610/erases to which you have pled guilty. First, you give up the right against self-incrimination. That is the right to say nothing at all____ Again that is just in relation to the offenses to which you have pled guilty. Do you understand that?
ACC: Yes, Your Honor.
MJ: If you continue with your guilty plea, then you will be placed under oath and I will question you to determine whether you are, in fact, guilty. Anything that you tell me may be used against you in the sentencing portion of the proceeding. Do you understand this?
ACC: Yes, Sir.
MJ: If you tell me anything that is untrue, then your statements may be used against you later for charges of perjury or making false statements. Do you understand this?
ACC: Yes, Sir.

(Emphasis added).

The military judge never, in this discussion or elsewhere, informed the appellant that his statements concerning the dereliction of duty or damage to military property specifications could be used as evidence against him on the charge of larceny.

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Related

United States v. Flores
69 M.J. 651 (Air Force Court of Criminal Appeals, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
63 M.J. 611, 2006 CCA LEXIS 121, 2006 WL 1510704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-craig-afcca-2006.