United States v. Farano

60 M.J. 932, 2005 CCA LEXIS 82, 2005 WL 563403
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedMarch 11, 2005
DocketNMCCA 200400749
StatusPublished
Cited by1 cases

This text of 60 M.J. 932 (United States v. Farano) 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. Farano, 60 M.J. 932, 2005 CCA LEXIS 82, 2005 WL 563403 (N.M. 2005).

Opinion

DORMAN, Chief Judge:

The appellant was tried by a general court-martial before a military judge sitting alone. Consistent with his pleas, the appellant was convicted of procuring a fraudulent enlistment, and ten specifications of the use of controlled substances. The appellant used [933]*933three different substances: cocaine, lysergic acid diethylamide and methylenedioxymethamphetamine (ecstasy), all on divers occasions. He also used marijuana. The appellant’s crimes violated Articles 83 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 883 and 912a. The adjudged and approved sentence includes a bad-conduct discharge and confinement for 10 months.

The appellant has raised a single assignment of error. He asserts that his conviction for fraudulent enlistment should be set aside because the specification alleges that the offense occurred on 23 September 1998, at a time when he was not receiving pay from the Navy. In the same assignment of error he also argues that this offense should be set aside because it was barred by the statute of limitations. We have reviewed the record of trial, the appellant’s assignment of error, and the Government’s response. Following that review, we conclude that the findings and sentence are correct in law and fact, and that no errors were committed that materially prejudiced the substantial rights of the appellant. Arts. 59(a) and 66(e), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Facts

The Specification under Charge I alleges that the appellant fraudulently enlisted in the Navy on 23 September 1998. It further alleges that the enlistment was fraudulent because the appellant knowingly made a false representation that he had never used illegal controlled substances.

During the inquiry into the providence of his guilty pleas, the appellant informed the military judge that he met with his recruiter on 23 September 1998 and completed DD form 1966/1. On that form he faded to disclose that he had previously used controlled substances. That was a false representation and the appellant knew it was false. During the providence inquiry, the appellant also acknowledged that the extent of his preservice use would have barred his enlistment because a waiver could not have been obtained. Additionally, the appellant informed the military judge that he told his recruiter about his prior use of drugs, but the recruiter told him to keep his mouth shut. On 23 September 1998, the appellant entered the delayed entry program, but he did not receive pay and benefits until he came on active duty on 21 December 1998. Thus, he enlisted on 21 December 1998.

The specification alleging the appellant’s fraudulent enlistment was both preferred and received by the officer exercising summary court-martial jurisdiction on 29 October 2003. During the appellant’s court-martial there was no discussion of whether prosecution of this offense was barred by the 5-year statute of limitations. Art. 43(b)(1), UCMJ, 10 U.S.C. § 843(b)(1).

Discussion

The appellant’s assignment of error reads as follows:

APPELLANT’S CONVICTION OF FRAUDULENT ENLISTMENT SHOULD BE REVERSED AND THE SPECIFICATION SHOULD BE DISMISSED. THE SPECIFICATION STATED THAT ON 23 SEPTEMBER 1998 APPELLANT FALSELY REPRESENTED THAT HE HAD NEVER ILLEGALLY USED CONTROLLED SUBSTANCES AND HE THEREBY PROCURED ENLISTMENT IN THE UNITED STATES NAVY. ON 23 SEPTEMBER 1998 APPELLANT WAS NOT RECEIVING PAY AND ALLOWANCES WHICH IS AN ELEMENT OF THE OFFENSE. THE 23 SEPTEMBER 1998 DATE IN THE SPECIFICATION IS ALSO BEYOND THE FIVE-YEAR STATUTE OF LIMITATIONS.

This assignment of error contains two issues. First, he essentially asserts a variance between the pleadings and the proof—date alleged in the specification and the date that he actually began receiving pay. See United States v. Teffeau, 58 M.J. 62, 66 (C.A.A.F.2003). Secondly, he asserts for the first time, that his prosecution of this offense is barred by the statute of limitations.

A. Variance.

We consider the appellant’s assertion that he was not receiving pay or allowances on a date of the alleged offense, as a variance argument. As such, we note that [934]*934the military justice system “is a notice pleading jurisdiction. If a specification informs an accused of the offense against which he or she must defend and bars a future prosecution for the same offense, the specification is sufficient.” United States v. Gallo, 53 M.J. 556, 564 (A.F.Ct.Crim.App.2000)(citing United States v. Sell, 11 C.M.R. 202, 206, 1953 WL 2005 (C.M.A.1953)), aff'd, 55 M.J. 418 (C.A.A.F 2001). “A variance is not fatal unless it causes substantial prejudice to the rights of an accused____” United States v. Dailey, 37 M.J. 1078, 1080 (N.M.C.M.R 1993); see also United States v. Teffeau, 58 M.J. at 66. In assessing whether an appellant has been prejudiced we look to the same questions as noted above. “[I]t must be determined both whether the accused has been misled to the extent that he has been unable to adequately prepare for trial and whether the accused is fully protected from another prosecution for the same offense.” Dailey, 37 M.J. at 1080 (citing United States v. Lee, 1 M.J. 15 (C.M.A.1975)); United States v. Craig, 24 C.M.R. 28, 1957 WL 4692 (C.M.A.1957); United States v. Hopf, 5 C.M.R. 12, 1952 WL 2054 (C.M.A.1952). We further note that minor variations in the date that the offense was allegedly committed are not necessarily fatal. Teffeau, 58 M.J. at 66.

The crime of fraudulent enlistment is committed when a person “procures his own enlistment or appointment in the armed forces by knowingly false representation or deliberate concealment as to his qualifications for the enlistment or appointment and receives pay or allowances thereunder____” Art. 83(1), UCMJ, 10 U.S.C. § 883(1). To prove this offense the Government must establish four elements:

(a) That the accused was enlisted or appointed in an armed force;
(b) That the accused knowingly misrepresented or deliberately concealed a certain material fact or facts regarding qualifications of the accused for enlistment or appointment;
(c) That the accused’s enlistment or appointment was obtained or procured by that knowingly false representation or deliberate concealment; and
(d) That under this enlistment or appointment that accused received pay or allowances or both.

Manual for Courts-Martial, United States (1998 ed.), Part IV, ¶ 7b(l). The gist of the offense is the fraudulent receipt of pay and allowances, not the misrepresentation of a material fact. United States v. King, 27 C.M.R. 732, 735-36, 1959 WL 3678 (A.B.R.1959); William Winthrop, Military Law and Precedents 733-34 (1920 Reprint).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Fosler
69 M.J. 669 (Navy-Marine Corps Court of Criminal Appeals, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
60 M.J. 932, 2005 CCA LEXIS 82, 2005 WL 563403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-farano-nmcca-2005.