United States v. Escobar

5 M.J. 587
CourtU S Air Force Court of Military Review
DecidedApril 24, 1978
DocketACM S24576
StatusPublished
Cited by7 cases

This text of 5 M.J. 587 (United States v. Escobar) 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. Escobar, 5 M.J. 587 (usafctmilrev 1978).

Opinion

DECISION

ORSER, Judge:

Tried by a special court-martial composed of a military judge sitting alone, the accused was convicted, despite his not guilty plea, of larceny of a leather jacket, in violation of Article 121 of the Uniform Code of Military Justice, 10 U.S.C. § 921. The approved sentence consists of a bad conduct discharge, confinement at hard labor for two months and forfeiture of $100.00 per month for two months.

The principal issue before us is whether the court-martial properly exercised jurisdiction over the offense. Although the crime was charged as having occurred on the military installation at Lowry Air Force Base, Colorado,1 the stipulated evidence shows that the accused wrongfully gained possession of the jacket at the victim’s apartment in the local civilian community. For reasons set forth below, we hold that the offense was sufficiently service connected to justify the exercise of military jurisdiction. Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971).

The victim, an Airman named Bailey, was in the process of moving his personal possessions from base quarters at Lowry to an off-base apartment he had rented. At the suggestion of a military acquaintance of Bailey and the accused, the latter volunteered to assist with the move.

After helping transport Bailey’s property from Lowry to his new off-base quarters, the accused assisted with the unloading. While so engaged, the accused surreptitiously took a leather jacket from a bundle of clothing and hid it near the apartment complex. Later, he retrieved the jacket from its hiding place and took it to his own quarters located on Lowry Air Force Base. Within a few days thereafter, one of Bailey’s friends observed the accused wearing [589]*589the jacket at the Lowry Airman’s Club. Security policemen were duly notified and promptly took custody of both the jacket and the accused. Bailey was contacted and identified the jacket as the one he had lost during his move.

At trial, the defense moved that the charge be dismissed for lack of jurisdiction. On behalf of the government, the trial counsel successfully argued for adoption of the common law doctrine that larceny is a continuing offense and, on that basis, a person who commits a larceny in one jurisdiction and transports the purloined property into another may be prosecuted in that latter jurisdiction as if all elements of the crime were committed there. See 156 A.L.R. 862; 2 Wharton Criminal Law and Procedure, Sec. 485; 50 Am.Jur.2d, Sec. 115.

As pointed out by the trial counsel during his argument, and in an excellent brief he submitted on the issue, a majority of the state courts that have considered the matter have adopted the theory that larceny, by nature, is a continuous offense that is deemed to occur anew each time a thief transports his stolen property into a different jurisdiction. 156 A.L.R. 862 et seq., and the cases cited therein. In the language of the Annotation, this view “is based on the idea that the unlawful possession of the thief in the state into which the stolen goods are brought constitutes a new caption and asportation — a new deprivation of the owner of his right to his property and its possession — and is punishable in that state as a new offense.” Id., at 866.

Although few federal decisions can be found that discuss the concept, or any aspect thereof, those that do have generally recognized it to be a valid legal principle.2 A recent example appears in Fogle v. United States, 336 A.2d 833 (D.C.Crt.App.1975). In Fogle, the Court utilized the theory in evaluating the defendant’s intent. The Court reasoned that the asportation aspect of the larceny continued until the defendant had disposed of a stolen automobile at a car shredder. In another case, where the defendant was judged guilty as a principal on an aider and abettor concept by virtue of the assistance he provided the actual taker in the transportation of stolen property, the Court stated:

The crime of larceny obviously continues as long as the asportation continues and the original asportation continues at least so long as the perpetrator of the crime indicates by his actions that he is dissatisfied with the location of the stolen goods immediately after the crime and with no more than a few minutes delay causes another to continue the asportation.

United States v. Barlow, 152 U.S.App.D.C. 336, 344, 470 F.2d 1245, 1253 (1972).

Finally, in the recent case of United States v. Willis, 559 F.2d 443 (5th Cir. 1977), cited by appellate government counsel in their brief, the Circuit Court agreed with the Barlow analysis in declaring that robbery is not a consummated transaction until the immediate removal phase is completed.

To our knowledge, the United States Supreme Court has not specifically declared a position on the jurisdictional ramifications of the continuing larceny theory. However, we believe it somewhat significant that the Court declined to review an Iowa Supreme Court decision sanctioning application of the doctrine. The Iowa case concerned a conviction of larceny of a motor vehicle where the vehicle was stolen in the State of Nebraska and driven across the border into Iowa. In affirming the conviction, the Court stated: “[W]hat petitioner overlooks is that he was convicted not for what he did in Nebraska, but because his act in bringing the stolen truck into Pottawattamie County [Iowa] amounted to larceny in that county.” Newlon v. Bennett, 253 Iowa 555, 112 [590]*590N.W.2d 884 (1962), cert. denied, 369 U.S. 658, 82 S.Ct. 1037, 8 L.Ed.2d 274 (1962).3

Our research has disclosed no military-cases that specifically adopt or reject the doctrine, though it is discussed in at least one decision. See United States v. Pleuss, 29 C.M.R. 648 (A.B.R.1960). The Air Force Board of Review decision of United States v. Carter, 23 C.M.R. 872 (A.F.B.R.1957), does, however, tend to support the theory, at least by inference. Granting, as argued by appellate defense counsel, that Carter is not a jurisdiction ease, the decision nevertheless holds that one who does no more than aid in the asportation and disposal of property knowing it to be stolen is guilty as a principal in the theft of the property, and not merely as an accessory after the fact or as a receiver of stolen property. We agree with the trial counsel’s analysis that the implication of Carter is that larceny continues at least as long as there is any continuation of the asportation. If that were not so, the Court could not have concluded that an individual who assisted in the asportation aspect was guilty as a principal.

The accused’s counsel contended at trial and appellate defense counsel now contend that the United States Court of Military Appeals implicitly rejected the continuing larceny theory in the case of United States v. Riehle, 18 C.M.R. 603, 40 C.M.R. 315 (1969). In Reihle,

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