United States v. Lepresti

52 M.J. 644, 1999 CCA LEXIS 316, 1999 WL 1273125
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedDecember 7, 1999
DocketNMCM 97 01671
StatusPublished
Cited by23 cases

This text of 52 M.J. 644 (United States v. Lepresti) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal 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. Lepresti, 52 M.J. 644, 1999 CCA LEXIS 316, 1999 WL 1273125 (N.M. 1999).

Opinion

DORMAN, Senior Judge:

A general court-martial composed of officer members convicted appellant, contrary to his pleas, of larceny and forgery, in violation of Articles 121 and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 921 and 923 (1994). The approved sentence includes confinement for 6 months, forfeiture of all pay and allowances, reduction to pay grade E-l, and a bad-conduct discharge. By his action of 26 January 1999, the convening authority [646]*646suspended “forfeiture of all pay and allowances, not exceeding $500 ...” for a period of six months.

This is the second time this case has been before us. By our decision of 27 October 1998, we found the convening authority’s action to be clearly incorrect and returned the record for preparation of a corrected action. That action has been completed and the record is once again before us for review, without the assignment of additional error. We have now carefully considered the record of trial, the appellant’s assignments of error, and the Government’s response.

Upon review, we have found error and will take corrective action. Following our corrective action, we conclude that the findings are now correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Upon reassessment of the sentence, we find that it is also correct in law and fact. Arts. 59(a) and 66(c), UCMJ.

Facts

In November 1994, Mr. J.D. Anderson II, and appellant were both assigned to Fleet Training Center, Norfolk, Virginia, where they became good friends. Record at 319-20, 358, 372. On 22 May 1995, Mr. Anderson was medically discharged from the Navy. Following his discharge, Mr. Anderson packed his belongings into a rental van, and proceeded to clean his rented townhouse. He had the carpets cleaned on 25 May 1995, paying for the service by check. Prosecution Exhibit 19. With all his belongings moved out of his townhouse, he accepted the appellant’s invitation to spend his last night in Virginia at the appellant’s house. Record at 321, 380, and 538. That evening Mr. Anderson carried a “fanny pack” into the appellant’s house. It contained some items of personal hygiene as well as Mr. Anderson’s wallet and checkbook. He slept on the appellant’s sofa that night, and placed the fanny pack on a coffee table in front of the sofa where he slept. Id. at 322-23, 380. The appellant went out that evening and Mr. Anderson heard him return home around 0200. Mr. Anderson then fell back to sleep. Id. at 324.

On the morning of 26 May 1995, the appellant awoke Mr. Anderson and shortly thereafter Mr. Anderson began the drive to his new home in Colorado. On the first day he drove to Indiana, where he stayed overnight with his parents. He then continued his trip to Colorado. Id. at 324, 538. After arriving in Colorado, he placed his belongings in storage, and then flew back to Indiana on 1 June 1995, where he remained for about six weeks. Id. at 324-25, 538. During his stay in Indiana, Mr. Anderson realized his checkbook was missing. He was unconcerned about his missing checkbook because he believed that it was stored with his belongings in Colorado. Id. at 325.

During mid-June 1995, Mr. Anderson became aware that two checks, numbers 1060 and 1061, in the amounts of $2,500 and $1,000, had cleared through his Navy Federal Credit Union (NFCU) account. Since he did not recall writing the cheeks, he asked NFCU to send him copies of the checks. Id. at 326, 329, 388.

After Mr. Anderson realized his checkbook was missing, he called the appellant from Indiana in order to see if he had left it at the appellant’s home. The appellant claimed to have looked for the checkbook and then told Mr. Anderson that he did not find it. Id. at 330. Mr. Anderson called the appellant about a week and a half later, while the appellant was on leave in Pennsylvania. Mr. Anderson made this call after learning of some unauthorized credit card purchases on his charge account, and to again discuss the two checks. The appellant told him that he did not know anything about the transactions. Mr. Anderson also asked the appellant whether the appellant’s roommate, “Lou,” had seemingly come into some money. The appellant indicated that was not the case. The next day, the appellant called Mr. Anderson and told him that he thought Lou had used the appellant’s cheeking account the same way he had used Mr. Anderson’s, and that Lou had written a $900 check on the appellant’s account which bounced. One day later, the appellant told Mr. Anderson that Lou had killed himself, and that Lou’s mother had given the appellant power of attorney to sell Lou’s belongings, and that the appel[647]*647lant would use the money to pay Mr. Anderson for what Lou had done. When Mr. Anderson informed the appellant that NFCU was sending copies of the check numbers 1060 and 1061 to Mr. Anderson, the appellant told him that Lou might have put the appellant’s name on the cheeks. Id. at 331-33, 399. A friend of the appellant’s, Hospital Corpsman Second Class Griffin, testified that he saw Lou in October-November 1995, and that he had talked with him by phone in December of 1995. He had not heard of Lou killing himself. Id. at 486-87.

The evidence at trial revealed that Mr. Anderson’s NFCU check number 1060, made payable to the appellant for $2,500 and dated 5 June 1995, was presented at the Naval Air Federal Credit Union [NAFCU] on 9 June 1995. It was processed and paid by NFCU on 12 June 1995. Id. at 465; Prosecution Exhibits 7 and 9. Additionally, NFCU check number 1061 was made payable to the appellant for $1,000. It was dated 17 June 1995 and was presented at NAFCU on 27 June. The appellant took leave from 12-25 June 1995 and visited with Mr. Anderson and his family in Indiana for several days during that leave period. Record at 331, 364, 523-25; Defense Exhibit A. On 28 June 1995, NFCU processed and paid the second check. Record at 464; Prosecution Exhibits 15 and 18. Although both checks are made out to “Samuel Lepresti,” both are endorsed on the bark with the signature, “Samuel R. Lepresti.” The signature on the back of check number 1060 bears a striking resemblance to the appellant’s signature on a stipulation of fact entered into the record during the case on the merits. Prosecution Exhibits 7 and 22.

In mid-June 1995, NFCU contacted Mr. Anderson to inform him of some abnormal charges on his credit card account. Record at 327, 388, 467; Prosecution Exhibits 3 and 24. On 27 June 1995, Mr. Anderson notified the Bank of New York of the fraudulent use of another one of his credit cards. Id. at 407; Prosecution Exhibits 1 and 2. The fraud included the purchase of auto parts of a total value of $728.70 from Quadratec on 9 June 1995, and shipped to the appellant on 12 June 1995. Id. at 416; Prosecution Exhibit 10. An exercise machine and an exercise video of a total value of $247.85 were purchased from Fingerhut Corporation on 6 June 1995, and shipped to the appellant on 9 and 14 June 1995 using Mr. Anderson’s NFCU Visa credit card. Id. at 425-26; Prosecution Exhibits 3 and 11. Jeep equipment was purchased from a company called “4 West” on 6 June 1995 using Mr. Anderson’s credit card. Part of the order totaling $375.05 was shipped to the appellant on 6 June 1995, and a back-ordered item valued at $190.17 was shipped to the appellant on 9 June 1995.

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Bluebook (online)
52 M.J. 644, 1999 CCA LEXIS 316, 1999 WL 1273125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lepresti-nmcca-1999.