United States v. Dyer

5 M.J. 637
CourtU S Air Force Court of Military Review
DecidedMay 17, 1978
DocketACM 22323
StatusPublished
Cited by5 cases

This text of 5 M.J. 637 (United States v. Dyer) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dyer, 5 M.J. 637 (usafctmilrev 1978).

Opinion

DECISION

HERMAN, Judge:

The accused was convicted of fourteen specifications of larceny from the Air Force Aid Society, totalling some $11,000.00, as well as a 30 month absence without leave, violations of Articles 121 and 86 of the Uniform Code of Military Justice, 10 U.S.C. §§ 921, 886. His guilty pleas were made pursuant to a pretrial agreement. We hold that, in this context, amendment of one of the larceny specifications from $500.00 to $1,500.00 did not result in a different, additional or more serious offense, and that it was not capable of misleading the accused; therefore, it was not necessary to have the amended specifications charged and sworn anew. We also hold that it was proper for the convening authority to order a post-trial limited hearing for the purpose of correcting an omission of the military judge made during his inquiry into the circumstances surrounding the pretrial agreement.

On 18 December 1975, the accused was charged by his squadron commander with a number of larcenies from the Air Force Aid Society, one of which was a $500.00 theft of funds on 13 April 1974. The charges, as preferred, were received on behalf of the special court-martial convening authority on the same date. The accused had been absent without leave for a month at that time, and did not return until 20 April 1977, soon after which an investigation under Article 32, Code, supra, commenced.

The investigating officer recommended that the specification in question be changed to allege a larceny of $1,500.00 instead of $500.00, since the evidence submitted to him indicated the subject theft [638]*638was in the higher amount. On 8 June 1977, this was accomplished at the direction of the special court-martial convening authority-

At trial, defense counsel unsuccessfully moved to dismiss the specification now alleging a larceny of $1,500.00, on the ground that it had not been received by the convening authority within three years from the date of its commission. Article 43, Uniform Code of Military Justice. Trial and appellate defense counsel assert that increasing the amount of the theft constituted it a different, substantially more serious crime, requiring the accuser to charge and swear to it anew, citing United States v. Arbic, 16 U.S.C.M.A. 292, 36 C.M.R. 448 (1966) and United States v. Smith, 8 U.S.C. M.A. 178, 23 C.M.R. 402 (1957). Although this course of action might have been the wisest under other circumstances, had it been followed in the instant ease, the new specification would have been subject to dismissal because of the statute of limitations. Article 43, Code, supra. The defense contends that failure to amend or recharge the offense within the three year limitation period waives the government’s right to do so after the expiration of that time.

Article 34 of the Code, supra, in describing the process of referral of charges to a general court-martial after investigation, provides:

(b) If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections, and such changes in the charges and specifications as are needed to make them conform to the evidence, may be made.

The leading case of the Court of Military Appeals respecting this issue is United States v. Krutsinger, 15 U.S.C.M.A. 235, 35 C.M.R. 207 (1965). The modification made therein of an absence without leave charge increased the maximum punishment from six months to a year’s confinement and from partial to total forfeitures, and it added a punitive discharge not previously authorized. Judge Quinn’s opinion in that unanimous decision ruled the amendment improper since it included matter aggravating the seriousness of the offense (length of the absence) and subjected the accused to greater punishment. 35 C.M.R. at 210. The Smith case, supra, cited by the defense in its motion at trial was distinguished by Judge Quinn, as counsel therein had unwittingly failed to object to an improper amendment from larceny to robbery, resulting in trial on, for all intents and purposes, an unsworn charge.

The Krutsinger rationale was explained the following year in United States v. Arbic, 16 U.S.C.M.A. 292, 36 C.M.R. 448 (1966), where the original sworn charge of desertion was amended to absence without leave upon the Article 32 investigating officer’s recommendation, at a time when the three year statute of limitations would have been expired for a newly sworn charge. Holding that no prejudice resulted from the modification of the charge and specification, Judge Kilday wrote concerning the Krutsinger case,

A change of the absent without leave specification at trial was deemed improper in that it aggravated the seriousness of the offense and subjected the accused to greater punishment. Nonetheless, application of Krutsinger, supra, is not universal. The Court there admonished that an amendment may be impermissible in one situation but perfectly valid in another. The text of the opinion makes clear that each case must stand on its own facts, tested under outlines hereinbefore discussed. . . . Factually, then, this case is the antithesis of Krutsinger, supra. Indeed, the evidence before us aptly demonstrates that the appellant stands convicted of neither a basically different nor more serious offense. In truth, every element of absence without leave is to be found in desertion. Rather than being more serious in nature, it is lesser included. Even in its most derogative form it supports lesser rather than greater punishment.

36 C.M.R. at 451.

In this case, the modification of the specification left all but the amount unchanged. The offense of larceny, the date and place, [639]*639the victim, and the maximum permissible punishment remained the same. This case falls precisely between Krutsinger, where the maximum punishment was increased by the amendment, and Arbic, where it was reduced. We apply the philosophy of the Court of Military Appeals, which, as expressed in United States v. Ellsey, 16 U.S.C.M.A. 455, 37 C.M.R. 75 (1966), “has always permitted liberal amendment of pleadings, provided the substantial rights of the accused were not prejudiced.” We find that the amendment did not result in a different, additional, or more serious offense, nor was it capable of misleading the accused. The funds alleged to have been stolen were in the form of a check; it was simply the amount of the check which was erroneously averred.

It cannot be disputed that increasing the amount of the larceny from $500.00 to $1,500.00 makes the offense appear more serious despite the fact that the maximum punishment is not thereby increased. Under the circumstances of this case, however, where upwards of $10,000.00 in other, similar larcenies were charged, we find an absence of prejudice to the substantial rights of the accused.

Defense counsel next assign as error that

THE CONVENING AUTHORITY EXCEEDED HIS AUTHORITY IN ORDERING A LIMITED, EVIDENTIA-RY HEARING TO CORRECT A DEFICIENT PLEA PROVIDENCY INQUIRY.

The accused pleaded guilty to the charges and specifications of which he was convicted, pursuant to a pretrial agreement.

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Bluebook (online)
5 M.J. 637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dyer-usafctmilrev-1978.