United States v. Dawson

50 M.J. 599, 1999 CCA LEXIS 58
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedMarch 5, 1999
DocketNMCM 98 01049
StatusPublished
Cited by20 cases

This text of 50 M.J. 599 (United States v. Dawson) is published on Counsel Stack Legal Research, covering Navy-Marine Corps 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. Dawson, 50 M.J. 599, 1999 CCA LEXIS 58 (N.M. 1999).

Opinion

TROIDL, Judge:

A military judge sitting as a general court-martial convicted the appellant, pursuant to his pleas, of conspiracy to commit larceny and two specifications of larceny, in violation of Articles 81 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 921 (1994).1 The adjudged sentence included a bad-conduct discharge, confinement for one year, and reduction to pay grade E-l. The convening authority approved the sentence as adjudged, but suspended all confinement in excess of eight months in accordance with the terms of a pretrial agreement.

We have carefully reviewed the record of trial, the appellant’s assignments of error, and the Government’s response. Except as discussed below, we conclude 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. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Background

The appellant was assigned to his unit’s supply office where he worked under GySgt Szczepanski, the unit’s Supply Chief. GySgt Szczepanski was able to stretch the unit’s budget by obtaining various supplies from the Defense Reutilization Marketing Office (DRMO) at little or no expense to his unit. Unfortunately, GySgt Szczepanski turned this good idea into an illegal venture by giving items obtained from the DRMO that were in excess of the unit’s needs, or were of no value to the unit, to individuals (including himself) for their personal use. On occasion, rather than giving items to specific individuals, GySgt Szczepanski would simply announce that they were “up for grabs,” or, in other words, available to anyone in the unit who wanted them. Seeing his superiors engaging in this activity,2 although knowing it was improper, the appellant elected to benefit from GySgt Szezepanski’s largess with the Government’s military property.

During the period November 1996 through April 1997, the appellant took from his unit’s spaces, for his own personal use or to give away to others, miscellaneous items of military property which GySgt Szczepanski had said were “up for grabs”. The total value of these items exceeded $100. [These facts form the basis of the Additional Charge alleging larceny of military property.]

About this same time, GySgt Szczepanski ordered and received a number of Vietnam [601]*601era grenade launchers from the DRMO. He kept for himself some of the launchers, which were still operational but not usable by his unit, and distributed the rest to other individuals. In January or February 1997, GySgt Szczepanski invited the appellant to his off-base residence. While the appellant was at the residence, GySgt Szczepanski gave him four of the launchers, telling the appellant to store them at the appellant’s home in New Mexico for two years before doing anything with them. The reason for the delay was to ensure the items were no longer carried as missing on any military inventories, thus reducing the risk the items could be identified as stolen property. The appellant testified that he viewed the launchers as antiques and intended to mount and present them to members of his family who had served in the military. There is no indication that the appellant intended to return the launchers to, or was secreting them for, GySgt Szczepan-ski. [These facts form the basis of the alleged conspiracy to commit larceny under Charge I and the alleged larceny under Charge II.]

Improvident Plea to Conspiracy

In his first assignment of error, the appellant asserts that his guilty plea to conspiring with GySgt Szczepanski to steal the grenade launchers was improvident. He claims that GySgt Szczepanski had already stolen the four grenade launchers before they agreed that the appellant would transport the four launchers to New Mexico and hold them for two years. As a result, the appellant argues that he could not conspire to steal that which his alleged co-conspirator had already stolen.

A military judge may not accept a guilty plea to an offense without inquiring into its factual basis. United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247, 1969 WL 6059 (1969); Art. 45(a), UCMJ. Before accepting a guilty plea, the military judge must explain the elements of the offense and ensure that a factual basis for the plea exists. United States v. Faircloth, 45 M.J. 172 (1996); United States v. Davenport, 9 M.J. 364, 367 (C.M.A.1980). Mere conclusions of law recited by the accused are insufficient to provide a factual basis for a guilty plea. United States v. Outhier, 45 M.J. 326, 331 (1996); United States v. Terry, 21 C.M.A. 442, 45 C.M.R. 216, 1972 WL 14158 (1972). The accused must be convinced of, and able to describe, all the facts necessary to establish guilt. Acceptance of a guilty plea requires the accused to substantiate the facts that objectively support his plea. United States v. Schwabauer, 37 M.J. 338, 341 (C.M.A. 1993); Rule For Courts-Martial 910(e), Manual For Courts-Martial, United States (1998 ed.).

A military judge may not “arbitrarily reject a guilty plea.” United States v. Penister, 25 M.J. 148, 152 (C.M.A.1987). The standard of review to determine whether a plea is provident is whether the record reveals a substantial basis in law or fact for questioning the plea. United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). Such rejection must overcome the generally applied waiver of the factual issue of guilt inherent in voluntary pleas of guilty. The only exception to the general rule of waiver arises when an error prejudicial to the substantial rights of the appellant occurs. R.C.M. 910(j); Art. 59(a), UCMJ.

In our review of the record, we determined that the military judge accurately listed the elements and defined the terms contained in the elements for the offenses to which appellant plead guilty. We also determined that the appellant indicated an understanding of the elements of the offenses and the legal definitions, and stated they correctly described the offenses he committed.

A conspiracy requires that the agreement which is the core of the conspiracy must exist before the intended offense is complete. See United States v. Matias, 25 M.J. 356, 362 (C.M.A.1987), cert. denied 485 U.S. 968, 108 S.Ct. 1242, 99 L.Ed.2d 441 (1988); MCM, Part IV, ¶ 5b (1995 ed.).

We turn then to the question of when the crime of larceny is complete. In United States v. Hubbard, 28 M.J. 203, 205 (C.M.A. 1989), our superior court stated that:

In United States v. Seivers, 8 MJ 63, 65 (CMA 1979), this Court said, “It is well settled that the larceny continues until such time as its fruits are secured in a [602]*602place where they may be appropriated to the use of the perpetrator of the scheme.” (Emphasis added.) Earlier, in United States v. Escobar, 7 MJ 197, 199 (CMA 1979), this Court cited a passage from United States v. Barlow, 152 U.S.App. D.C. 336, 470 F.2d 1245, 1253 (D.C.Cir.

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50 M.J. 599, 1999 CCA LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dawson-nmcca-1999.