United States v. Erby

46 M.J. 649, 1997 CCA LEXIS 150, 1997 WL 214794
CourtUnited States Air Force Court of Criminal Appeals
DecidedApril 25, 1997
DocketACM32391
StatusPublished
Cited by15 cases

This text of 46 M.J. 649 (United States v. Erby) 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. Erby, 46 M.J. 649, 1997 CCA LEXIS 150, 1997 WL 214794 (afcca 1997).

Opinion

OPINION OF THE COURT

MORGAN, C.H., II, Judge:

By creating fictitious names, social security numbers, and travel orders, then inputting them into Air Force computer records to authorize electronic funds transfer to his own [650]*650account, appellant, who was a finance clerk, embezzled nearly $24,000 of government funds. A military judge sitting alone as a general court-martial convicted appellant pursuant to his pleas of five specifications each of larceny, forgery, and uttering a forged document. He sentenced him to a dishonorable discharge, confinement for 3 years, a $10,000 fine, total forfeitures, and reduction to the lowest enlisted grade. He added up to 1 year additional confinement if the fine were not paid. Although a pretrial agreement limiting confinement to no more than 38 months did not factor, the convening authority responded to appellant’s plea for clemency by changing the character of the discharge to a bad-conduct discharge, and limiting the contingent additional confinement if the fine were not paid to 2 months. He otherwise approved the sentence as adjudged.

Appellant brings three assignments of error: (I) that the offenses of forgery and uttering the documents forged were multipli-eious with the larceny offenses; (II) that his sentence is unduly severe; and (III) that his sentence was unconstitutionally aggravated in violation of the Ex Post Facto clause of the Constitution. Finding no merit to any of the assignments of error, we affirm.

Facts

Appellant began his larcenous adventure while stationed at Dyess Air Force Base, Texas. On March 1, 1995, while working in the Travel Pay section of the base finance office, he took a completed computer diskette which tabulated travel payments, after accounts were reconciled at the end of the business day, and surreptitiously created an additional $4200 entry against a fictitious travel voucher, using a thinly disguised alteration of his name, “K.A. Erbi,” his own social security number, and the numeric code directing payment to his personal account at the Dyess Credit Union. He then took this altered diskette over to the Pay and Collection branch, who processed it for payment. In due course, the funds were electronically transferred to his account. Since there was no actual travel voucher against this payment, appellant hand-wrote an entry voiding the phony voucher.

He reprised this method on March 10, 1995. This time the phony name was “A. Erry.” Rather than make up a travel voucher, he transferred information from an actual travel voucher filed by a staff sergeant. He took in an additional $3,360.82.

By August of 1995 appellant had been transferred to Kadena Air Base, Japan. Here he refined his technique. Evidently realizing that the absence of verifiable vouchers against the payment documents might well lead to his discovery, he took the actual Permanent Change of Station (PCS) orders of an active-duty lieutenant colonel home with him. Armed with white-out, scissors, and tape, he doctored those orders by creating a fictitious name. Rather than use his own social security number, he made one up, but again used his own credit union account number. He then created an advance travel pay authorization against the phony PCS order. Despite the made-up social security number the scheme worked and $6,640.40 transferred to his account.

The technique improved still further in October of that year. He again used the PCS orders of an active-duty captain to cut a phony set of orders in a fictitious name. Again he made up a social security number but entered the correct code for his personal account number. To add to the advanced PCS entitlement, he made up a wife and three children, complete with birthdates. This too worked, and appellant collected $3,635.20.

Appellant’s final strike came in November of 1995. By this time he had the routine down pat. He again took the orders of somebody going PCS and again used a fictitious social security number, and thus had $6,134.04 transferred to his account.

I. Multiplicity

Even though appellant successfully completed an exhaustive providence inquiry on each of the specifications and the charge, during the sentencing argument at trial appellant’s lawyer characterized his crimes as essentially five larcenies.

[651]*651[TJhis case basically boils down to five larcenies, five larcenies from the government. Obviously, there is conduct involved in order for him to take the money. But if you look at the charges, obviously we can’t control the way they want to charge things. I guess each time you punch the computer — the button, they could charge you with a separate offense thanks to Teeters (sic) and company. The fact is, look at the underlying conduct, your Honor. We have the steps taken and the ultimate larceny on five occasions, and five occasions only.

Now on appeal appellant seeks to formalize as error that which he conceded informally at trial. Specifically he alleges that the forgery and uttering of the electronic documents are multiplicious with the larceny. This, according to appellant, was but a single course of conduct and should not, therefore, be separately punished. Rather than cite any case dealing with these offenses in terms of multiplicity, appellant points us to R.C.M. 307(c)(4), which speaks in terms of the unreasonable multiplication of charges. Because there is a difference between those two concepts, it is worthwhile to examine appellant’s arguments more closely.

We could dispose of this case simply on the principle of waiver. In a superbly crafted reply brief, the government answers that multiplicity claims are waived by a provident guilty plea unless the offenses charged are factually the same thing, that is, that the failure to correct multiplicious charging is so egregious as to amount to “plain error.” United States v. Lloyd, 46 M.J. 19 (1997), citing United States v. Broce, 488 U.S. 563, 575, 109 S.Ct. 757, 765-66, 102 L.Ed.2d 927 (1989) (guilty plea waives double jeopardy claim unless “facially duplicative”). At trial appellant made no motion in terms of multiplicity and entered provident pleas of guilty to each of the fifteen separate specifications covering the five incidents of cybernetic larceny. The only question remaining is whether the crimes as charged are facially duplica-tive.

Fortunately we do not have to look far for the answer. Neither do we have to decide what “facially duplicative” means, since authoritative precedent establishes that the charging in this case was not multipli-cious. The larceny charges are not multipli-cious with the forgery charges, even if the forgery is the mechanism whereby the larceny is accomplished. United States v. Teters, 37 M.J. 370, 377-78 (C.M.A.1993); see also United States v. Oatney, 45 M.J. 185 (1996) (rejecting actus reus theory of multiplicity). Further, uttering the various forged electronic documents was not multiplicious with their forgery. United States v. Albrecht, 43 M.J. 65, 68 (1995). The question is whether charging the larceny, and forgery, and uttering the same forged documents used to effect the larceny, constitutes an unreasonable multiplication of charges, and whether the military judge was required sua sponte to do something about it if appellant made no complaint at trial.

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Cite This Page — Counsel Stack

Bluebook (online)
46 M.J. 649, 1997 CCA LEXIS 150, 1997 WL 214794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-erby-afcca-1997.