United States v. Gunter

37 M.J. 781, 1993 CMR LEXIS 282, 1993 WL 242682
CourtU.S. Army Court of Military Review
DecidedJune 29, 1993
DocketACMR 9300014
StatusPublished
Cited by4 cases

This text of 37 M.J. 781 (United States v. Gunter) is published on Counsel Stack Legal Research, covering U.S. Army 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. Gunter, 37 M.J. 781, 1993 CMR LEXIS 282, 1993 WL 242682 (usarmymilrev 1993).

Opinion

OPINION OF THE COURT

GONZALES, Judge:

Pursuant to his pleas, the appellant was found guilty, by a military judge sitting as a general court-martial, of absence without leave, failure to obey a lawful general regulation, wrongful appropriation, four specifications of larceny, and two specifications of forgery, in violation of Articles 86, 92, 121, and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 892, 921, and 923 (1988) [hereinafter UCMJ], The appellant was sentenced to a dishonorable discharge, confinement for twenty-eight months, forfeiture of all pay and allowances, and reduction to Private El. In compliance with a pretrial agreement, the convening authority reduced the term of confinement to eight months, but otherwise approved the adjudged sentence.

On appeal, the appellant asserts that the military judge erred in accepting the pleas of guilty to the wrongful appropriation and larceny specifications because during the providence inquiry the military judge failed to adequately resolve the possible self-help defense for the collection of a debt. He also contends that his court-martial lacked jurisdiction because the military judge was designated in violation of the Appointments Clause of the United States Constitution and Freytag v. Commissioner of Internal Revenue, — U.S. -, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991). We disagree with both assignments of error and affirm.

The appellant admitted taking five blank checks from Private E2 (PY2) W’s checkbook and one blank check from Private First Class (PFC) H’s checkbook and a car stereo belonging to PFC H without each owner’s permission. With respect to PV2 W, the appellant forged PV2 W’s signature to the five blank checks and cashed them in various amounts for a total of $595.00. The appellant also forged PFC H’s signature to the single blank check and cashed it for $200.00. The stereo was valued at $230.00. The appellant indicated that the reason he took the checks and stereo was because PV2 W owed him “roughly” $595.00 and PFC H owed him approximately $369.00. The stipulation of fact indicated that both sides agreed that PFC H owed the appellant some money. It was silent on whether PV2 W owed the appellant any money. In his unsworn statement during the sentencing phase of trial, the appellant again reiterated that both PV2 W and PFC H owed him “some money.”1

At the outset we note that Rule for Courts-Martial 916 [hereinafter R.C.M.] does not include the defense of self-help for the collection of a debt. We acknowledge, however, that this is a “special situation” defense that was developed by the Court of Military Appeals beginning with United States v. Smith, 2 U.S.C.M.A. 312, 8 C.M.R. 112 (1953). There, Judge Quinn wrote that Sergeant (SGT) Smith could not be found guilty of wrongful appropriation or any lesser included offense of larceny if he rightfully took certain items of clothing valued at well over $50.00 as collateral for a debt owed to him. Sergeant Smith testified that he needed money and, without giving any notice to the debtor, took the debtor’s clothing from a third party. While the facts of this case are limited, it appears that the “rightful” taking by SGT Smith was based on the debtor’s testimony that when SGT Smith loaned him some money, which we assume was $50.00, he told SGT Smith that he could take his clothing if he did not pay back the loan.

[783]*783Twenty years later, in United States v. Eggleton, 22 U.S.C.M.A. 503, 47 C.M.R. 920 (1973), the Court of Military Appeals restricted the self-help for the collection of a debt defense to the extent that the value of the property taken as security for a debt must reasonably be approximate to the amount of the debt. Airman First Class (AFC) Eggleton pled guilty to wrongful appropriation of a stereo valued at $814.00 that belonged to another airman who AFC Eggleton claimed owed a friend of his $90.00 to $100.00. While recognizing that an accused who takes property, or assists another to take property, as security for a bona fide debt does not possess the criminal intent necessary for conviction of larceny or wrongful appropriation, the Court, nevertheless, rejected AFC Eggleton’s defense of self-help for the collection of a debt because the value of the stereo greatly exceeded the amount of the debt. The Court reasoned that any taking of more than the amount owed on the debt denoted the existence of the requisite criminal intent to steal. Id. at 922.

Finally, in United States v. Smith, 14 M.J. 68 (C.M.A.1982), the Court of Military Appeals addressed the situation where an accused took only the exact amount of money owed to him from his victim. Private First Class Smith had loaned Private (PVT) Webber $10.00 and sought payment. Private Webber could not pay, but told PFC Smith that PFC Powell owed PVT Webber $20.00, and if PFC Smith could get $10.00 from PFC Powell, PFC Smith could keep it as payment for the $10.00 PVT Webber owed to PFC Smith. Private First Class Smith confronted PVT Powell and took $10.00 from him after threatening him with a knife. Private First Class Smith sought to collect on the debt owed him and nothing more. The court found that PFC Smith’s insistence that he only intended to acquire his own property — rather than intending to steal someone else’s property— was inconsistent with his plea of guilty and held that his plea was improvident. Id. at 71.

Before accepting a plea of guilty, the military judge must conduct a searching and detailed inquiry of the accused to determine if he understands his plea, if it is entered voluntarily, and if the accused is in fact guilty of the charged offense. United States v. Davenport, 9 M.J. 364 (C.M.A. 1980); United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). When an accused’s responses during the providence inquiry suggest a possible defense, the military judge must explain the elements of that defense to the accused. R.G.M. 910(e) discussion; United States v. Lee, 16 M.J. 278, 281 (C.M.A.1983). Where the possibility of a defense exists, a military judge should secure satisfactory disclaimers from the accused that the defense does not apply. United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). A plea of guilty should not be accepted unless inconsistencies bearing on a possible defense can be satisfactorily resolved. United States v. Johnson, 25 M.J. 553, 554 (A.C.M.R. 1987).

In the instant case, the following colloquy occurred during the providence inquiry concerning the appellant’s intentions surrounding the larceny and forgery offenses involving PV2 W:

MJ: I need to make you aware that if you thought that you had a right to take those checks and that money and go ahead and cash those checks or whatever to get the money that he owed you, then it’s possible that you would not be found guilty of the offense of stealing money. Do you understand that?
ACC: Yes, sir.
MJ: What I’m telling you, if you believe you had a right to take those checks, make his signature on those checks and to cash those checks and receive money from his bank account, then you have what’s in the law called a mistake of fact defense.

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Related

United States v. Gunter
42 M.J. 292 (Court of Appeals for the Armed Forces, 1995)
United States v. Birdsong
40 M.J. 606 (U.S. Army Court of Military Review, 1994)
United States v. Kelley
39 M.J. 1011 (U.S. Army Court of Military Review, 1994)

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Bluebook (online)
37 M.J. 781, 1993 CMR LEXIS 282, 1993 WL 242682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gunter-usarmymilrev-1993.