United States v. Lennette

41 M.J. 488, 1995 CAAF LEXIS 54, 1995 WL 152177
CourtCourt of Appeals for the Armed Forces
DecidedApril 7, 1995
DocketNo. 93-5021; CMR No. 92 0442
StatusPublished
Cited by5 cases

This text of 41 M.J. 488 (United States v. Lennette) 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. Lennette, 41 M.J. 488, 1995 CAAF LEXIS 54, 1995 WL 152177 (Ark. 1995).

Opinions

Opinion of the Court

WISS, Judge:

1. Pursuant to appellant’s pleas, a special court-martial convicted him of conspiracy to commit larceny, larceny, falsely making military identification cards, and obstruction of justice, see Arts. 81, 121, and 134, Uniform Code of Military Justice, 10 USC §§ 881, 921, and 934, respectively. The military judge then sentenced appellant to a bad-conduct discharge, confinement for 2 months, forfeiture of $500.00 pay per month for 3 months, and reduction to the lowest enlisted grade. The convening authority approved these results, and the Court of Military Review1 2affirmed in an unpublished opinion.

2. The Acting Judge Advocate General of the Navy sent this case to this Court for review, certifying the following question for consideration, see Art. 67(a)(2), UCMJ, 10 USC § 867(a)(2) (1989):

WHETHER THE NAVY-MARINE CORPS [COURT] OF MILITARY REVIEW CORRECTLY DETERMINED THAT A THIEF’S DESTRUCTION OF STOLEN IDENTIFICATION CARDS IS THE TYPE OF POST-OFFENSE ACT [489]*489THAT CONSTITUTES OBSTRUCTION OF JUSTICE.

We now answer that question in the affirmative within the context of the facts of this case.

I

3. As part of his duties in his Marine regiment’s personnel office, appellant prepared military identification (ID) cards. In May 1991, Hospitalman Apprentice Labelle approached him about a scheme to steal money by using fake ID cards to set up bogus bank accounts upon which to cash bad checks. Pursuant to their agreement, appellant stole five blank cards and typed false information on two of them, which he gave to Labelle along with one blank card on a later date; appellant himself retained the two remaining blank cards.

4. Unfortunately for the two, the scheme went awry within a week. In appellant’s presence, Labelle was caught using one of the fake ID cards to cash a check when the cashier became suspicious while attempting to verify the amount of funds in the bogus account. The military police were summoned, and Labelle was taken into custody and questioned. Appellant was not arrested, however. The next morning, appellant tore up the two blank cards in his possession and threw them into the trash. Unpub. op. at 2.

5. Ultimately, as indicated at the outset, appellant was charged, inter alia, with obstruction of justice — specifically, that he did “wrongfully endeavor to impede an investigation in the case of U.S. v. [appellant] by destroying evidence, to wit: 2 Armed Forces Identification Cards.” During the providence inquiry, appellant specifically admitted that he had done so “[b]ecause I believed that the two cards would be evidence against me, sir.” He explained that, while there was not “an ongoing investigation” of himself at that time, he knew that the police would be “looking into” his “involvement” because he had been with Labelle. The following brief colloquy brings all this into focus:

MJ: So, whether or not you actually knew, there was no doubt in your mind that they were going to be looking into your involvement; is that what you’re telling me?
ACCUSED: Yes, sir.
MJ: Do you believe that if, in fact, the authorities found these blank ID cards in your possession that it could possibly be used against you as evidence?
ACCUSED: Yes, sir.
MJ: Did you believe that whatever it was that they, the authorities, believed you had done, you and Labelle, that it was serious enough that [sic] ultimately would be handled at a criminal proceedings as I have defined that term?
ACCUSED: Yes, sir.
MJ: Court-martial or at least office hours?
ACCUSED: Yes, sir.

II

6. In the face of these admissions on the record, appellant contends that his plea to obstructing justice was improvident. He does so with the assertion that there is a legal distinction between post-crime actions that are taken merely to avoid detection (characterized by appellant as “acts that simply ‘frustrate justice,’ ” — Final Brief, at 8), on the one hand, and acts committed to obstruct justice in the sense of corrupting the due administration of the processes of justice, on the other. See United States v. Finsel, 36 MJ 441, 443 (CMA 1993); see also para. 96b(3), Part IV, Manual for Courts-Martial, United States, 1984 (third element of obstructing justice: “That the act was done ■with the intent to influence, impede, or otherwise obstruct the due administration of justice ” (emphasis added)). He submits that, where destruction of evidence is involved in the alleged obstruction, the applicable inquiry should be whether “an accused willfully destroyed] potential evidence which has been seized or is otherwise within the authorities’ control. ...” Final Brief at 10.2

[490]*4907. Appellant’s suggestion is without precedent. Counsel has cited us to certain cases involving destruction of evidence in which the evidence in question had been seized by authorities. See, e.g., United States v. Jones, 20 MJ 38 (CMA 1985); United States v. Ridgeway, 13 MJ 742, 745-47 (ACMR 1982). The earlier seizure of the evidence by authorities, however, simply was a fact coincident in those cases; nothing in any opinion from this Court and nothing in the elements of this offense under Article 134 that are set out by the President in the Manual for Courts-Martial can fairly be read to draw such an arbitrary line. See para. 96b. See also United States v. Gravely, 840 F.2d 1156, 1160 (4th Cir.1988) (under Federal obstruction statute, it is not necessary that documentary evidence allegedly destroyed was then “under subpoena”; “it is sufficient if the defendant is aware that the grand jury will likely seek the documents in its investigation”).

8. This Court is aware of the potential conceptual ambiguity between the notion of whether an act was taken as an effort by the accused to avoid detection or whether it was taken in an effort to corrupt the due administration of the processes of justice. In Finsel, however, we acknowledged not only that there is a distinction between these actions when charged as obstructing justice, but also that the answer to the dilemma must be found “on a case-by-case basis, considering the facts and circumstances surrounding the alleged obstruction and the time of its occurrence with respect to the administration of justice.” Id. at 443.

9. Appellant, echoing the sentiments in the separate opinion .of Judge Lawrence in this case in the Court of Military Review, argues that this amounts to no standard at all. See unpub. op. at 5. To make his point, appellant asks us to “[cjonsider (1) the robber who wears a mask to hide his identity from the authorities, (2) the murderer who wipes his fingerprints off the murder weapon, (3) the thief who changes the license plates on the ‘getaway’ car, and (4) the criminal who removes the serial number from his gun.” Final Brief at 9. He submits that under Finsel and the decision below, all might be guilty of obstructing justice.

10.

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Cite This Page — Counsel Stack

Bluebook (online)
41 M.J. 488, 1995 CAAF LEXIS 54, 1995 WL 152177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lennette-armfor-1995.