United States v. Keleher

14 C.M.A. 125, 14 USCMA 125, 33 C.M.R. 337, 1963 CMA LEXIS 217, 1963 WL 4864

• Court: United States Court of Military Appeals
• Decided: July 12, 1963
• Docket: No. 16,507
• Status: Published

Opinions

Opinion of the Court

Kilday, Judge:

The accused master sergeant was noncommissioned officer in charge of the Transient Officers Section, Officers’ Open Mess, Kishine Barracks, Yokohama, Japan. A shortage in accounts led to his present difficulties. Arraigned before a general court-martial on a charge of wrongfully appropriating $117.85, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921, he pleaded not guilty. He was, however, convicted as charged, and the court sentenced him to bad-conduct discharge, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The convening authority approved the findings of guilty and so much of the sentence as provided for bad-conduct discharge and total forfeitures, and a board of review in the office of The Judge Advocate General of the Army thereafter affirmed.

Accused thereupon petitioned this Court for grant of review, and we elected to consider arguments on two issues assigned by appellate defense counsel. They involve a record of a prior conviction of the accused, admitted into evidence against him on the merits, but subsequently removed and stricken from evidence; and the law officer’s instructions as to the permissible inference to be drawn from failure to account. The pertinent facts may appropriately be recounted in the course of our treatment of the respective issues.

I

The situation giving rise to the issue concerning the prior conviction is both unusual and involved. It warrants recitation in considerable detail, in order that the question may be considered in proper perspective.

After the prosecution had rested its case in chief against accused, individual defense counsel called for an out-of-court hearing. Thereat, he requested an advisory opinion¹ by the law officer as to the admissibility of a two-year-old conviction for wrongful appropriation by the accused in the event the latter testified in his own behalf. Trial counsel urged that such conviction might properly be used to impeach accused, while individual defense counsel contended to the contrary. At that point the law officer indicated informally, but subject to modification upon showing of other circumstances, his reluctance to permit such impeachment.

When court resumed in open session, accused took the witness stand under oath on the merits. On cross-examination trial counsel adduced the fact that, some two years previously accused had been bookkeeper for the Fort Bragg Fish and Wild Life Association. As such, he kept the records and handled cash. Thereupon, over individual defense counsel’s strenuous objection, trial counsel introduced evidence that accused had been convicted by general court-martial for wrongful appropriation of over $50.00 from that organization. The defense motion for mistrial based on the admission of this prior conviction was denied.

The admissibility of this prior offense had, in the meanwhile, been the subject of yet another out-of-court hearing. Trial counsel had argued that the crime was a breach of a fiduciary relationship and urged that it might properly be allowed in evidence as an offense involving moral turpitude, to impeach accused. Individual defense counsel, on the other hand, asserted that the prior delict was inadmissible, either for that or any other purpose. The law officer, in overruling the defense objection and permitting proof of the conviction for wrongful appropriation, did not state any basis for his ruling.

When both parties had rested, the law officer held a closed session to apprise counsel of his proposed instructions. In the course of that hearing he indicated his intent to admonish the court-martial that it might consider the prior conviction “only as it may go to the specific intent in the instant alleged offense and for no other purpose.” Trial counsel asked that it also be considered on impeachment, but got no response and the matter was dropped when the defense interjected a request for further advice relative to the question of remoteness of the conviction, which the law officer agreed to give.

Arguments to the members of the court-martial ensued,² whereupon the prosecution requested an out-of-court hearing prior to instructions. Thereat, trial counsel made the following request :

“TC: Yes, sir, at the time the law officer instructed — admitted the prior conviction of the accused by general court-martial — at that time the basis of the ruling was not of course stated and it was my impression it was being admitted on the primary ground for which it was offered. At the time the instructions were gone over I didn’t I admit think of it. However, upon reflection, I feel that the basis upon which the law officer admitted it, it should not be admitted on that basis, and I would join with the defense counsel in having the court instructed to disregard it.

“LO: The record of previous conviction—

“TC: Upon reflection it is my contention that it is probably not admissible for that purpose. Of course I stand by my original position that it is admissible for purpose of impeaching, but on the basis of showing specific intent I don’t think it is and I request the law officer instruct the court to disregard it.”

The law officer indicated he would give an appropriate instruction, and the defense did not oppose the same. Individual counsel indicated, however, that he deemed introduction of the evidence to be erroneous from the start and still did; that the evidence was already before the court and “the damage has been done and probably the best thing to do is to sustain my motion on a mistrial, which we ask the law officer to do at this time, and in lieu of that of course the instruction may cure it — I don’t know.”

Upon resumption of proceedings in open session, the law officer ordered the prior conviction stricken from evidence. The following colloquy took place:

“LO: Counsel for both sides have requested that Prosecution Exhibit 7 be withdrawn from the evidence before the court. That request is granted. The court is instructed that it must disregard all evidence relating to the previous conviction when determining the guilt or innocence of this accused as to the presently charged offense. If any member feels that he cannot totally disregard the evidence relating to previous conviction in determining the guilt or innocence of the accused to the presently alleged offense he should now so state.

“LT COL HENSLEY: From a legal point of view what would this mean? We have heard it. It’s been a part of the case, a rather dramatic part of the case.

“LO: Are you able to completely disregard it in deliberating the guilt or innocence of the accused?

“LT COL HENSLEY: Yes, I think I can.

“LO: Are all members able to completely disregard it?

“Apparently so.

“IC: I should like to for this reason. I want to address my remarks at the court generally. Now naturally in arguing this case I remember one time I referred to the fact that the court of course was aware that I did not agree with the law officer at the time this statement was admitted, but it had been admitted and therefore you would have to consider it. Now perhaps I have planted this in your minds. The point that I should like to know is — do you feel that you can continue with this case and render your judgment in view of all the other facts in the case as if there were no evidence, as though he had never been convicted, so far as you are concerned, of this offense?

“As Col Hensley said, you have heard it, and it is hard to wipe out of your mind, and this is the danger that I think. Now if any of you feel that you cannot completely disregard it as if it had never happened then this is the test; I think it should be applied. You all feel that you could do that? If any member feels he couldn’t he could excuse himself from the court.

“LO: Apparently all members feel—

“TC: I might state at this time that this is one of the developments that come up in a trial and I, as representative of the government, add my exhortation to the members of the court to disregard completely and don’t even consider it as a factor in this case, because, as the law officer indicated, it is no longer a factor in this case at this point.

“PRES: You may proceed.

“LO: Apparently court members feel that they are able to totally disregard it.”

Appellate defense counsel contend that the above events constitute “multiple prejudicial error,” and require reversal of the findings of guilty. Briefly, the argument runs that the prior conviction was inadmissible, and that the law officer’s instruction to disregard that item could not, under the circumstances of this case, be effectual.

In United States v Moore, 5 USCMA 687, 18 CMR 311, we considered the question of impeachment by prior court-martial convictions. This Court concluded, in that instance, that if the imposable punishment for the crime extended to dishonorable discharge or confinement for more than one year, or if the offense involved moral turpitude, such a prior conviction might properly be admitted for the purpose of impeachment. The defense points out to us, just as it did at trial, that the maximum penalty for the wrongful appropriation accused committed at Fort Bragg includes only bad-conduct discharge and confinement for six months. See Table of Maximum Punishments, Manual for Courts-Martial, United States, 1951, paragraph 127c, page 223. Thus, that branch of the test laid down in Moore is not met. Neither, appellate defense counsel argue, is wrongful appropriation an offense of moral turpitude, and they invite our attention to United States v Perry, 20 CMR 638, where a board of review indicated in a footnote that misappropriation of property need not involve moral turpitude.

It is this last argument we cannot accept, for wrongful appropriation is not — as the defense contends — “nothing more than an unauthorized temporary borrowing.” To the contrary, as long ago as United States v Norris, 2 USCMA 236, 8 CMR 36, we held that mere “wrongful taking” did not constitute an offense in military law, and more recently this Court elaborated on that same principle in United States v Hayes, 8 USCMA 627, 25 CMR 131. Thus, in Hayes it was stated:

“Not every wrongful taking constitutes a violation of Article 121. See United States v Norris, 2 USCMA 236, 8 CMR 36. The intent to deprive the owner of his property, either permanently or temporarily, must include a mens rea. Therefore, the mere ‘borrowing’ of an article of property without the prior consent of the owner does not make out either of the offenses defined in Article 121. Something more is required, and that something is criminal intention. Thus, if one visits the office of a friend, and, finding him absent, takes a book which he has come to borrow, leaves a note to that effect, and returns the book the next day, there is no intent to steal or misappropriate the book and, necessarily, no violation of Article 121.” [8 USCMA at pages 629, 630.]

Clearly, wrongful appropriation involves both a mens rea and a specific criminal intent. Indeed it js universally agreed that larceny is a crime of moral turpitude, and wrongful appropriation is identical to larceny with the exception that the specific intent need involve only temporary deprivation, rather than permanent. While the latter element differs in the two offenses vio-lative of Article 121, the nature and quality of the intent in each is nonetheless identical. And, we are sure, it must be concluded moral turpitude is present in both.

It is quite true, as we pointed out in United States v Moore, supra, that it is difficult to set down a comprehensive definition of moral turpitude. However, as was there noted, it is beyond cavil that offenses in which fraud is an ingredient involve moral turpitude. In this connection, see the decision of the United States Supreme Court in Jordan v De George, 341 US 223, 95 L ed 886, 71 S Ct 703 (1951), and the numerous Federal decisions there collated.

Significantly, the terms of Article 121, Uniform Code of Military Justice, supra, provide that the specific intent in both larceny and wrongful appropriation may be “to deprive or defraud” the true owner of property wrongfully taken from him. (Emphasis supplied.) Thus, in addition to the pecuniary aspects of these offenses, fraud is expressly involved. Indeed, in Moore we pointed out that “fraud” — insofar as moral turpitude is concerned — may be involved even without pecuniary loss and in instances involving deceit rather than fraud in the narrow sense. The same factors also apply where the criminal intent is to deprive the owner of his property or to appropriate the same to the use of another.

It is, therefore, plain why larceny is accepted by all as a moral turpitude offense. Hence, it is equally clear that wrongful appropriation, which involves the identical factors, falls into the same category. Accordingly, to the extent the board of review opinion in the Perry case would indicate a contrary conclusion, we expressly decline to follow it. Jordan v De George, supra; United States v Moore, supra; United States v Hayes, supra.

In view of the foregoing discussion, it is manifest that accused’s conviction by general court-martial for wrongful appropriation at Fort Bragg was admissible to impeach his credibility as a witness. And we are not deterred in this conclusion by the defense argument of remoteness. Although the two year interval between that offense and the instant trial goes to the weight to be attached to this evidence, we cannot say the period renders the prior conviction so remote as to be inadmissible as a matter of law. Cf. United States v Moreno, 10 USCMA 406, 27 CMR 480.

Thus, the prior conviction was admissible on the grounds the prosecution offered it — as impeachment. We recognize that at one point in the second interlocutory hearing on admissibility trial counsel made passing reference to motive and intent, emphasizing the breach of fiduciary relationship involved. It must be borne in mind, however, that the law officer had, at the first hearing, indicated his advisory opinion on admissibility was subject to change upon a showing of additional facts. Along that line, trial counsel indicated the breach of fiduciary trust common to both situations, and only made reference to intent after the law officer himself had inquired regarding the same. Just as the defense never retreated from its view that the evidence was inadmissible, trial counsel consistently and throughout urged that the item constituted proper impeachment. Moreover, it is of interest that the item was raised only with respect to testimony by accused; the evidence was not offered on the case in chief where, if admissible on intent, its use would be entirely proper quite without regard to whether accused chose to take the witness stand.

Under those circumstances we are not confronted with a situation where the prosecution craftily plotted to bring to the attention of the court-martial improper evidence that accused was a “bad man,” then later to “save his case” by asking the law officer to have the court-members disregard that which had been paraded before them. To the contrary, trial counsel offered the prior conviction for the purpose of impeachment, on which basis it was perfectly admissible. It was not until the law officer discussed his proposed instructions that counsel was aware the court-martial would be permitted to consider the evidence for any other purpose. Then, when for the first time the law officer made this disclosure, trial counsel commendably declined to mention the prior offense in his argument, and asked the law officer to strike the evidence and .caution the members of the court. We perceive no improper or untoward conduct on the part of trial counsel and the issue, therefore, boils down to whether there was no choice but to grant a mistrial when the evidence was stricken, rather than admonishing the court-martial to disregard the evidence.

A mistrial is a stringent remedy, and the choice between the two courses lies largely within the sound discretion of the law officer. Cautionary or limiting instructions may, in many cases, serve as a palliative. See Hopt v People of Utah, 120 US 430, 30 L ed 708, 7 S Ct 614 (1887); United States v On Lee, 193 F2d 306 (CA2d Cir) (1951); United States v O’Briski, 2 USCMA 361, 8 CMR 161; United States v Patrick, 8 USCMA 212, 24 CMR 88. Of course, such an admonition may not always be efficacious, and each case turns on its own facts. See United States v Justice, 13 USCMA 31, 32 CMR 31, and cases cited therein.

In the case at bar, the colloquy that followed the law officer’s instruction to disregard may leave some doubt as to whether the court-martial could heed the advice, for the interest in the item on the part of at least one member is evident. On the other hand, the admonition by the law officer was emphatic, and both trial and defense counsel joined in the exhortation to disregard the evidence. All members indicated their ability to abide by the instruction and willingness to follow it and, although not conclusive of the question, that fact is entitled to substantial weight. But, in any event, as this Court unanimously held in a prior case of this sort, also involving impeachment, “error without resulting prejudice does not warrant reversal.” United States v Moreno, supra, at page 409.

No fair risk of prejudice to accused is discernible under the facts of this case. Had the evidence been left for consideration by the court-martial as impeachment of accused’s veracity, and an instruction given limiting the use of the evidence to that single area, clearly no problem would be presented. Here the cautionary admonition went even further; the court was charged to ignore entirely, perfectly admissible evidence. But, even if we were to assume, arguendo, that the court-martial members were unable — despite their contrary averments — to follow the law officer’s instruction and disregard the prior conviction, we would be faced with the anomalous contention that accused was prejudiced because the triers of fact were made aware of what was —as we have seen — perfectly admissible evidence. We are unable to accept that position. The issue before the court-martial in the case at bar was clear cut. There is no question but that accused was the custodian of non-appropriated funds, and he was admittedly unable to produce the same when an accounting was demanded. If the court concluded he was guilty of peculation, they would convict; if they entertained any reasonable doubt that the moneys were — as accused claimed— stolen from his keeping by unknown individuals, then a finding of not guilty would be required. Accordingly, and in view of the fact that the evidence was indeed admissible, we find no fair risk that accused’s conviction was occasioned because the court-martial was made aware he was a “bad man.”

We agree with the board of review that accused was not denied a fair trial because of this occurrence. The first assignment of error, therefore, must be resolved adversely to accused.

II

The second issue need not detain us long, as it presents the same problem as was recently before us in United States v Lyons, 14 USCMA 67, 33 CMR 279, which decision is largely disposi-tive here.

As previously mentioned, accused was unable to produce the missing funds of which he was custodian when demand was made upon him. He admitted he did not keep the funds in a safe, or a filing cabinet with combination lock, provided for valuables in his office. Neither did he place the money in a locked desk drawer, in which cash was also kept from time to time. Instead, he claimed that he had the money in two envelopes which he placed in an unsecured locker in his unlocked quarters, where he believed it would be safe, but from which place it was taken without his knowledge or permission by unknown persons. The theory of the prosecution, on the other hand, was that accused was in debt and pressed for funds, and that he himself took the missing money.

In advising the court-martial on the issue posed, the law officer instructed as follows:

“. . . The mere failure on the part of a custodian to account for entrusted funds does not in and of itself constitute a larceny or wrongful appropriation. However, a failure to account when demand is made or when an accounting is due will permit an inference that the custodian has wrongfully converted the property to his own use. The inference which may be drawn from the accused’s failure to account for or deliver entrusted property at the time an accounting or delivery is required may be considered by the court, together with all the other facts and circumstances of the case, in determining the issue of the accused’s guilt or innocence. However, such an inference is not mandatory and such an inference may be rejected or accepted as the court deems fit.”

And he further advised the court members:

“Gentlemen, before you may convict the accused of the offense charged you must be satisfied beyond a reasonable doubt by legal and competent evidence that the money was not stolen from the accused or otherwise taken from him without his consent or lost by him through his negligence.”

The above instructions follow closely the language used by this Court in United States v Crowell, 9 USCMA 43, 25 CMR 305. They make clear that mere failure to account does not itself constitute wrongful appropriation, but that a permissible inference that a custodian converted the funds may arise if he fails to account for the same upon demand or when an accounting is due. The law officer’s charge further leaves this inference to be considered against the backdrop of the whole case, and apprises the members that they are wholly unfettered as to whether or not to draw any such inference. Finally, the law officer admonished the court that it must acquit unless satisfied beyond reasonable doubt that the money was not stolen or taken from accused without his consent or lost by him through negligence.

It is clear beyond peradventure, therefore, that the law officer did not err in his instructions in this regard. See United States v Lyons, supra. See also United States v Crowell, supra; and United States v Sellers, 12 USCMA 262, 30 CMR 262. The second assigned error, accordingly, is also without merit.

The decision of the board of review is affirmed.

Chief Judge Quinn concurs.

1 See United States v Harris, 10 USCMA 69, 27 CMR 143.

2 It is to be noted that trial counsel made no reference whatever in his summation to the previous wrongful appropriation conviction.