United States v. Elmore

56 M.J. 533, 2001 CCA LEXIS 259, 2001 WL 1308011
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedOctober 26, 2001
DocketNMCM 99 01013
StatusPublished
Cited by3 cases

This text of 56 M.J. 533 (United States v. Elmore) 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. Elmore, 56 M.J. 533, 2001 CCA LEXIS 259, 2001 WL 1308011 (N.M. 2001).

Opinion

PRICE, Senior Judge:

Contrary to his pleas, the appellant was convicted by a general court-martial, consisting of officer and enlisted members, of dereliction of duty (five specifications), false official statement (one specification), larceny (six specifications), forgery (five specifications), [535]*535and larceny of mail matter (six specifications), in violation of Articles 92, 107, 121, 123, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907, 921, 923, and 934. The convening authority approved the adjudged sentence of confinement for three years, reduction to E-l, forfeiture of all pay and allowances, a fine of $3,421.00, and a bad-conduct discharge.

In this appeal, the appellant contends that: (1) the military judge erred in admitting expert handwriting testimony, (2) the evidence is factually and legally insufficient, (3) the military judge failed to instruct the members on the prosecution’s improper sentencing argument, (4) there is an unreasonable multiplication of charges, and (5) certain specifications involving one victim should be consolidated as being a “multiple article larceny.” We have carefully considered the record of trial, the assignments of error, and the Government’s response. Except as noted 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. See Arts. 59(a) and 66(e), UCMJ, 10 USC §§ 859(a) and 866(c). Although not assigned as error, we note that the court-martial promulgating order omits the reduction in rate in stating the adjudged sentence. We will direct corrective action in our decretal paragraph.

Facts

This is a case about six money orders totaling $3,421.00 that were stolen from the mail at the Navy’s Fleet Post Office (FPO) in Guantanamo Bay, Cuba, then forged and cashed. During the months of August, September, and October of 1996, four customers came to the FPO and purchased these money orders. While in the post office, they each prepared the money orders for mailing, deposited the packages into the outgoing mail slot or handed them to a postal clerk for mailing, then left. None of the six money orders reached the family members for whom they were intended. There is no dispute about the foregoing facts. The bone of contention is the identity of the person(s) who committed these crimes.

Petty Officer (PO) Pedrero testified that a female postal clerk sold her three money orders. She filled them out payable to her mother and inserted them and a videotape into an envelope, then handed it to a tall, black, skinny, male postal clerk. She did not know him at that time, but at trial identified the appellant as being that postal clerk. She also testified that she remembered seeing the appellant while she was buying the money orders and filling them out. PO Pedrero’s mother ultimately received the videotape but did not receive the money orders.

Mr. Santarin testified that a tall, black man sold him a money order. Unlike the first victim, there was no in-court identification of the appellant. Mr. Santarin filled out the money order payable to a money exchange firm that was to forward payment to his wife in the Philippines, then sealed it in an envelope and dropped it in the outgoing mail slot.

Mr. Adriano testified that a black man sold him a money order. As with Mr. Santarin, there was no in-court identification of the appellant. He also filled out the money order payable to the same money exchange firm for the benefit of his wife in the Philippines, then sealed it in an envelope and gave it to a tall man with the same skin color as his own who had kinky hair.

Ms. Eluding testified that a tall, black man sold her two money orders, one for $700.00 and one for $200.00. She positively identified the appellant as being that man. After filling them out payable to her mother, she sealed them in an envelope and gave it to the appellant for mailing. He told her he would take care of it. After learning that her mother did not receive either money order, Ms. Eluding filed a tracer on them. She was later advised that the $700.00 money order was voided, or “spoiled,” although she testified that she did not void it. Under standard postal procedures, such a voided money order would have been documented, then destroyed. She was reimbursed for the $200.00 money order, apparently after the post office could find no record of its whereabouts or [536]*536evidence of it having been cashed.1

Copies of five of the six stolen money orders were admitted in evidence. The sixth money order sold to Ms. Eluding was the one that was voided. On the back of each of the other five money orders were three different handwritings: (1) the signature endorsement, (2) a personal identification number (social security number for military personnel and employee identification number for civilians involved in this case), and (3) a set of initials. According to the testimony of the Postal Officer, regulations required the customer who desires to cash a money order to sign the back of the money order. The postal clerk then writes the customer’s identification number below the endorsement along with his own initials.

The purported signatures of the customers appear on the back of each of the five money orders. As to the customer identification number, it was incorrect on each of the five money orders with the exception of money order #80874362676 sold to PO Pedrero. The initials found on the back of each of the money orders were “GE,” again except for money order # 80874362676. The initials on the back of that money order were “JR.”

The witnesses testified they did not write the endorsement signatures or the personal identification numbers (social security numbers or employee identification numbers) found on the back of the money orders. An expert witness in handwriting analysis testified that there was sufficient cause to conclude that the appellant may have written the signatures, numbers, and initials on four of the five money orders placed in evidence, but that the evidence was far from conclusive. As to the fifth money order sold to Mr. Adriano, the witness testified similarly as to the employee identification numbered and initials, but that as to the endorsement, a conclusion on the appellant’s possible authorship was not possible.

Postal records established that, as indicated by the testimony of the customer witnesses, the appellant sold the money orders to Mr. Santarin, Mr. Adriano, and Ms. Eluding, but that a female postal clerk sold the money orders to PO Pedrero. An additional piece of evidence tying the appellant to Ms. Eluding’s money order was his purchase of a $700.00 money order on the same date that her $700.00 money order was purchased and voided. His money order was deposited in his credit union account the next day, followed by a $600.00 withdrawal.

The appellant and two other postal clerks fit the description of a tall, thin, black male.

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Related

United States v. Clark
61 M.J. 707 (Navy-Marine Corps Court of Criminal Appeals, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
56 M.J. 533, 2001 CCA LEXIS 259, 2001 WL 1308011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-elmore-nmcca-2001.