United States v. Hemingway

36 M.J. 349, 1993 CMA LEXIS 46, 1993 WL 64709
CourtUnited States Court of Military Appeals
DecidedMarch 11, 1993
DocketNo. 67,579; CM 9003416
StatusPublished
Cited by30 cases

This text of 36 M.J. 349 (United States v. Hemingway) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Hemingway, 36 M.J. 349, 1993 CMA LEXIS 46, 1993 WL 64709 (cma 1993).

Opinion

Opinion of the Court

WISS, Judge:

Before a general court-martial consisting of a military judge alone, appellant pleaded guilty to 2 specifications each of larceny of military property and conspiracy to commit larceny and forgery, in violation of Articles 121 and 81, Uniform Code of Military Justice, 10 USC §§ 921 and 881, respectively. [350]*350After the military judge had accepted appellant’s pleas and entered findings consistent with them, he sentenced appellant to a dishonorable discharge, confinement for 3 years, total forfeitures, and reduction to the lowest enlisted grade. Pursuant to a pretrial agreement, the convening authority reduced the period of confinement to 24 months but otherwise approved the trial results. The Court of Military Review affirmed without opinion.

Upon appellant’s petition, this Court granted review of the following two issues of law:

WHETHER THE MILITARY JUDGE IMPROPERLY ADVISED APPELLANT CONCERNING THE MAXIMUM ALLOWABLE SENTENCE THEREBY RENDERING APPELLANT’S PLEA IMPROVIDENT.
WHETHER THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE FINDINGS OF GUILTY TO LARCENY OF MILITARY PROPERTY (CHARGE III) [RENUMBERED CHARGE II] BECAUSE UNITED STATES TREASURY CHECKS AND THE CORRESPONDING FUNDS ARE NOT “MILITARY PROPERTY.”

As to the second issue, contrary to appellant’s assertion, we find that the fruit of appellant’s larcenies was “military property” within the meaning of paragraphs 46b(l)(e), 46e(l)(c), and 32c(l), Part IV, Manual for Courts-Martial, United States, 1984 (Change 3). As to the first issue, we hold that any misunderstanding as to the maximum sentence to confinement did not render appellant’s pleas improvident.

I

Appellant, who was a unit finance clerk, and a friend named Hooker concocted a scheme to steal and to forge United States Treasury checks from the travel pay section of the finance office to which appellant had access. On each of two occasions charged here, they stole a single check (one in the amount of $1,800.00 and the other for $2,485.23) and deposited it into Hooker’s own bank account.

From each incident, two charges arose relevant to this appeal: conspiracy to commit forgery and larceny, and larceny. Each of the conspiracy specifications alleged that appellant and Hooker conspired to commit “forgery by falsely making the signature of [a named person] as an indorsement to United States Treasury check [of a certain number]; and larceny of $1,800.00 [or $2,485.23], property of the United States Government____” (Emphasis added.) As to each larceny, it was alleged that appellant did “steal [a] United States Treasury Check [of a specific number], of some value, and $1,800.00 [or $2,485.23] in United States currency, both being military .property of the United States.” (Emphasis added.)

During the providence inquiry into appellant’s tendered guilty pleas to these charges (other charges later were withdrawn), the military judge queried counsel regarding their views of the maximum sentence. Defense counsel answered that his advice to appellant regarding maximum confinement was 35 years, though he offered no rationale for that figure. Trial counsel responded that he viewed each conspiracy and each larceny to carry a possible confinement of 10 years, for a total maximum confinement of 40 years.

The military judge prodded trial counsel further: “Okay. And you’re talking about the larceny because it was military property?” Trial counsel responded, “Yes, sir.” See para. 46e(l)(e). Defense counsel acknowledged that the checks themselves were military property; however, in somewhat ambiguous language, he seemed to argue that the money — since it was intended to go to a member of the military for performing certain services — was not.

Without much further airing of the matter, and without anyone expressly noting that the conspiracy specifications alleged “property of the United States Government” and not “military property of the United States,” the military judge concluded — actually agreed to by defense counsel — that the maximum confinement was, indeed, 40 years.

[351]*351ii

The answer to the question raised in appellant’s second assigned issue — whether the property stolen was “military property” versus some other kind of property— affects the maximum sentence to confinement that appellant faced on the two larceny specifications: If military property, it was 10 years for each larceny, for a total of 20 years for those 2 specifications; if not, it was 5 years, for a total of 10 years for the larcenies. Compare para. 46e(l)(e) with para. 46e(l)(d) (Change 3). Although the basis of appellant’s argument on the first assigned issue is broader than this question of the character of the property stolen, see opinion, infra, the answer to this question certainly will impact on our resolution of the first issue. Accordingly, we will initially resolve the second assigned issue as a predicate to resolving the first.

A

This sentencing scheme to which we just referred, of course, is within the authority of the President to determine. Art. 56, UCMJ, 10 USC § 856; United States v. Pitt, 35 MJ 478 (CMA 1992). Although paragraph 46, which addresses larceny, does not itself define what is included within the term “military property” for these purposes, a “Note” preceding paragraph 46b(l)(e) incorporates the definition of that term that is set out in paragraph 32c(l), which addresses Article 108 — “sale, loss, damage, destruction, or wrongful disposition” of “[mjilitary property of the United States.”

Paragraph 32c(l)(Change 3) states, “Military property is all property, real or personal, owned, held, or used by one of the armed forces of the United States.” (Emphasis added.) A more inclusive definition of military property — assuming that the particular property in question is “owned, held, or used by one of the armed forces”— is difficult to imagine.

Concededly, inasmuch as this language in paragraph 32c(l) seeks to define the meaning and ambit of a specific punitive article, it is not conclusively authoritative. As applied to this case, though, it is fully consistent with this Court’s view of the scope of that term for purposes of Article 108, in United States v. Schelin, 15 MJ 218 (CMA 1983).

In Schelin, the accused had wrongfully disposed of certain retail merchandise of the Army and Air Force Exchange Service, and the question before the Court was whether such property was “military property of the United States.” The Court noted language in paragraph 187c of the Manual for Courts-Martial, United States, 1969 (Revised edition), that made reference to property “ ‘of a type and kind issued for use in, or furnished and intended for, the military service of the United States, ____’” 15 MJ at 219 (emphasis added in text of Schelin). The Court specifically observed that “[t]he emphasized language ... seems to be derived from certain of the forerunners of Article 108, in particular Articles of War 84 and 94, and Article 14, Articles for the Government of the Navy.” Id. at 219-20 (footnotes omitted).

As footnotes 4 and 5 of that opinion make clear, two of those “forerunners of Article 108” — Article of War 94 and Article for the Government of the Navy 14 — referred to “ ‘ordinance, arms, equipment, ammunition, clothing, subsistence stores, money,

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Bluebook (online)
36 M.J. 349, 1993 CMA LEXIS 46, 1993 WL 64709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hemingway-cma-1993.