United States v. Jenkins

54 M.J. 12, 2000 CAAF LEXIS 948, 2000 WL 1239307
CourtCourt of Appeals for the Armed Forces
DecidedAugust 31, 2000
Docket99-0631/MC
StatusPublished
Cited by41 cases

This text of 54 M.J. 12 (United States v. Jenkins) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jenkins, 54 M.J. 12, 2000 CAAF LEXIS 948, 2000 WL 1239307 (Ark. 2000).

Opinions

Judge GIERKE

delivered the opinion of the Court.

A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of 37 specifications of larceny, 25 specifications of forgery, and one specification each of wrongfully using and of making an Armed Forces Identification Card, in violation of Articles 121, 123, and 134, Uniform Code of Military Justice, 10 USC §§ 921, 923, and 934, respectively. The adjudged sentence provides for a dishonorable discharge, confinement for 15 years, total forfeitures, a fine of $15,000 (enforced by an additional 5 years of confinement if the fine is not paid), and reduction to the lowest enlisted grade. The convening authority approved the sentence with a slight modification of forfeitures. The Court of Criminal Appeals affirmed the findings and sentence. 50 MJ 577 (1999).

Our Court granted review of two issues:

I
WHETHER THE LOWER COURT ERRED IN FINDING NO PREJUDICE WHERE THE TRIAL COUNSEL COMMITTED PLAIN ERROR BY REPEATEDLY ASKING APPELLANT ON CROSS-EXAMINATION WHETHER NUMEROUS WITNESSES WHO HAD TESTIFIED INCONSISTENTLY WITH APPELLANT WERE LYING.
II
WHETHER TRIAL COUNSEL COMMITTED PLAIN ERROR BY ARGUING FOR INCREASED PUNISHMENT BECAUSE APPELLANT PURPORTEDLY TESTIFIED FALSELY.

For the reasons set out below, we affirm.3

ISSUE I: TRIAL COUNSEL’S CROSS-EXAMINATION

Facts

Appellant was the supply sergeant at Separations Company, Camp Pendleton, California. Marines who were being discharged were out-processed by Separations Company. They would receive a final accounting of pay, after which Separations Company personnel would mail a final pay check to the discharged Marine. The theory of the prosecution was that appellant stole those final pay checks before they were mailed, then either cashed them or procured others to cash them, using fraudulent Armed Forces Identification Cards.

Chief Warrant Officer (CWO) Gorman, executive officer of Separations Company, testified that one of appellant’s duties was to compile the “shopping list” of supplies requested by members of the company. The prosecution presented documentary evidence showing that appellant ordered and received a package of 100 blank Armed Forces Identification Cards, but the identification cards were never received by Separations Company. The supply documents appear to bear the signatures of CWO Gorman, as the officer requesting the identification cards, and Staff Sergeant (SSgt) Garza, chief of administration, acknowledging receipt of the cards. Both CWO Gorman and SSgt Garza testified that they did not sign the documents.

Naval Criminal Investigative Service (NCIS) Special Agent (SA) McKenzie testified that appellant was questioned about the missing identification cards and consented to a search of his off-base residence. During the search, NCIS agents found a blank identification card inside a record album. Inside a large vase the agents found a manila envelope containing three partial identification cards bearing the names of three of the [14]*14alleged victims and small pieces of other identifications cards. The envelope also contained a cut up identification-card photo of Sergeant (Sgt) Spencer, one of appellant’s alleged co-actors, and a partial identification-card photo of appellant. The back of the envelope contained “practice signatures.” The NCIS agents also found lamination material in a dining room closet and an identification-card-sized photograph of appellant in a wall unit in the living room.

The NCIS agents also searched appellant’s personal vehicle. In a storage pouch at the rear of the driver’s seat they found a copy of the document requesting issuance of the blank identification cards, purporting to bear CWO Gorman’s and SSgt Garza’s signatures.

Corporal (Cpl) Saenz-Ortega testified about the procedures used by Separations Company to issue and mail pay checks. He described one occasion when a check was discovered missing and was later recovered by appellant from a trash can in front of another building and turned in to CWO Gorman.

All three of appellant’s co-actors testified against him pursuant to grants of immunity. Patricia Gibson, a civilian payroll technician, testified that she and appellant became friends and that the friendship evolved into an “intimate relationship.” She testified that, at appellant’s request, she endorsed the backs of a number of Treasury checks made out to various individuals and signed several identification cards.

Former-sergeant Jessie James Spencer testified that when discharged Marines started calling Separation Company about missing checks, he suspected that appellant was stealing them. His suspicions arose because appellant seemed to have a lot of money and because he observed what appeared to be a surreptitious conversation between appellant and Cpl Kevin Lynk. He told appellant that he “wanted in.” Spencer described how he and appellant stole the checks from the outgoing mail, made phony identification cards reflecting the names of the payees on the stolen checks, and cashed the checks.

Former-corporal Kevin Lynk testified that he worked for appellant for a year. He testified that appellant asked him to cash a check that had been returned to the company. He agreed after appellant “persistently asked [him] for about two weeks.” Appellant used the Polaroid camera from the company to take Lynk’s photograph and then made him a phony identification card. Lynk used the phony identification card to cash the check and shared the proceeds with appellant. Lynk subsequently cashed two more checks for appellant and shared the proceeds with him.

There was no dispute that the checks had been stolen and forged. Nevertheless, the prosecution presented expert testimony and documentary evidence establishing that the named payees did not endorse the checks, and the defense so stipulated. In addition, the prosecution presented evidence that appellant’s fingerprints were identified on a small piece of paper in the vase containing the pieces of identification cards and cut-up photographs, and on 12 of the forged checks. Spencer’s fingerprints were identified on seven forged checks.

The defense theory, articulated in civilian defense counsel’s opening statement, was that Spencer and Lynk were involved in a conspiracy to cash government checks, that they “became the object of suspicion,” and that they decided to frame appellant to “get the heat or the trail off of them.” With respect to Ms. Gibson, the defense theory was that she was “the spurned woman” who was jealous because appellant became involved with another woman.

Appellant testified in his own defense. He testified that the vase containing the evidence seized by the NCIS agents was in his office until April of 1996, when he moved it and a number of other personal items from his office to his residence. He testified that Ms. Gibson helped him by transporting the items, including the vase, in her car while he rode his motorcycle to his home.

He testified that he was in the bathroom when NCIS agents removed the brown envelope from the vase. He stated that he did not know how the envelope was placed in the [15]*15vase. He speculated that it must have happened at work.

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Cite This Page — Counsel Stack

Bluebook (online)
54 M.J. 12, 2000 CAAF LEXIS 948, 2000 WL 1239307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jenkins-armfor-2000.