United States v. Lorenzen

47 M.J. 8, 1997 CAAF LEXIS 53, 1997 WL 539554
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 3, 1997
DocketNo. 96-1036; Crim.App. No. 31292
StatusPublished
Cited by3 cases

This text of 47 M.J. 8 (United States v. Lorenzen) 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. Lorenzen, 47 M.J. 8, 1997 CAAF LEXIS 53, 1997 WL 539554 (Ark. 1997).

Opinion

Opinion of the Court

CRAWFORD, Judge:

Appellant was charged at a general court-martial with six specifications of larceny of the following military property:

1. Two General Electric base-station radios.
2. A master key to Building 500.
3. Four extreme cold weather sleeping bags.
4. Two MCU/2P gas masks.
5. Two General Electric camcorders, two Solidex tripods, and two General Electric AC adapters belonging to the University of Montana.
6. An Acer central processing unit, monitor, and keyboard. (Specifications 5 and 6 were combined.)

By exceptions and substitutions, he was convicted of all the larceny offenses, in violation of Article 121, Uniform Code of Military [10]*10Justice, 10 USC § 921, except stealing the master key to Building 500, the Acer central processing unit, and one Solidex tripod. He was also convicted of four specifications of writing bad checks, in violation of Article 123a, UCMJ, 10 USC § 923a. On April 7, 1994, appellant received a bad-conduct discharge, confinement and forfeiture of $330 pay per month for 5 years, and reduction to pay grade E-l. The Court of Criminal Appeals affirmed the findings and the sentence in an unpublished opinion.

We granted review of the following issues:

I
WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THAT TRIAL DEFENSE COUNSEL DID NOT ACT AS A DILIGENT AND CONSCIENTIOUS ADVOCATE ON BEHALF OF APPELLANT BY FAILING TO ACTIVELY AND EFFECTIVELY CHALLENGE AND CONTEST THE PROSECUTION’S CASE AND EVIDENCE, HIS FAILURE TO MAKE NECESSARY AND REQUIRED STATEMENTS, MOTIONS, AND OBJECTIONS, AND HIS FAILURE TO CROSS-EXAMINE WITNESSES AND TO PRESENT ANY DEFENSE WHEN RELEVANT AND MATERIAL EVIDENCE WAS READILY AVAILABLE.
II
WHETHER THE SENTENCE CANNOT BE AFFIRMED BY THIS HONORABLE COURT BECAUSE IT WAS SUBSTANTIALLY AFFECTED BY UNLAWFUL COMMAND INFLUENCE WHICH DEPRIVED APPELLANT OF VITAL AND FAVORABLE EVIDENCE FROM WITNESSES WHO HAD BEEN BLATANTLY ORDERED NOT TO MAKE STATEMENTS ON BEHALF OF APPELLANT.
Ill
WHETHER THE AIR FORCE. COURT OF CRIMINAL APPEALS COMMITTED PREJUDICIAL ERROR BY ADMITTING AND EXPRESSLY USING AN AFFIDAVIT SUBMITTED BY TRIAL DEFENSE COUNSEL WHICH WAS INADMISSIBLE BECAUSE IT DISCLOSED PRIVILEGED AND CONFIDENTIAL COMMUNICATIONS AND CONSTITUTED AN ILLEGAL AND UNETHICAL BREACH OF DEFENSE COUNSEL’S CONTINUING LOYALTY TO HIS CLIENT.

We hold that the presumption of competence of trial defense counsel has not been overcome and that the Government rebutted the presumption of prejudice arising from any unlawful command influence in the proceedings under Article 15, UCMJ, 10 USC § 815. For the reasons set forth below, we conclude that the granted issues are without merit.

FACTS

Appellant’s downfall began when he saw an acquaintance, Mr. Jody T. Cross, a retired servicemember, at a junkyard. Appellant and Cross discussed electronic equipment, and appellant informed Cross that he had some General Electric base-station type radios which Cross might be interested in purchasing from him. Appellant indicated that he purchased the base-station radios from salvage. Appellant later took those base-station radios to Cross’ home, and the two discussed Cross’ either buying them or finding someone to buy them.

Unfortunately for appellant, Cross closely examined the base-station radios that evening and, because they had not been demilitarized, suspected appellant was trying to sell stolen government property. The next day, he contacted the Air Force Office of Special Investigations (OSI) about his suspicions. Cross agreed to become a government informant and continue his dealings with appellant. While wearing a tape recording device, Cross had three extensive conversations with appellant about the base-station radios and sleeping bags.

The first recorded conversation involved Cross’ speaking with appellant on the telephone. The two set up a time to meet and purchase sleeping bags and discussed selling the base-station radios for “four bills” or [11]*11$4,000. During that conversation, Cross complained that he believed he sprained his back lifting the base-station radios. Appellant responded, “Because you are a wimp I guess. I loaded them and unloaded them twice.” Appellant also bragged that he had “brand new” sleeping bags to sell.

In the second tape-recorded conversation, Cross visited appellant at his home. At that time, Cross procured two military sleeping bags from appellant in a trade. The sleeping bags were “brand new and in their original wrappers.” Cross knew that they were military-type sleeping bags because they were green and had federal stock numbers attached to them. At that meeting, appellant also discussed Cross’ commission for selling the base-station radios and the missing doors to one of the radios.

During the final tape-recorded conversation, OSI agents also videotaped the transaction. Appellant and Cross met at a designated place so that Cross could pay appellant the $4,000 minus Cross’ $500 commission. After Cross handed the money to appellant, OSI agents apprehended appellant.

After his arrest, appellant consented to a search of his residence. OSI agents seized a key to Building 500, a checkbook, four sleeping bags, two MCU/2P gas masks, an Acer central processing unit, a monitor, keyboard, and some video equipment. The video equipment had the words “University of Montana” etched onto it. OSI identified the video equipment as property missing from the University of Montana’s Education Center, which was located at Malmstrom Air Force Base. The equipment had disappeared from the Education Center in 1991.

At trial, OSI Special Agent (SA) Shearer testified that he obtained a copy of the investigation of the missing video equipment and learned that appellant had informed agents he was alone in the building during the time frame in which the equipment had disappeared. SA Shearer also testified that the report pointed out that appellant had access to the room where the equipment had been.

At trial, the Chief of the Defense Reutilization and Marketing Office (DRMO) testified that the office’s records did not indicate appellant had bought any General Electric Master II base-station radios from DRMO. He also testified that DRMO had never sold new military-issue sleeping bags or MCU/2 gas masks. There was further testimony that the type of gas masks and sleeping bags found at appellant’s residence would only be given to DRMO if they were “totally unserviceable.” There was also testimony that appellant had never been issued a gas mask or sleeping bag.

As for the bad-check charges, in July of 1993 appellant had closed the account on which the bad checks were written. The bad checks were written in December of 1993. Major Torchia, a member on the panel, submitted a question asking whether appellant had another checking account when the bad checks were written and how much money was in that account. The Members Services Supervisor, Lois K. Tinney, testified that appellant did have another account, but she did not know how much money was in that account. She also testified that the bank would not have automatically taken the money from the other account.

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Cite This Page — Counsel Stack

Bluebook (online)
47 M.J. 8, 1997 CAAF LEXIS 53, 1997 WL 539554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lorenzen-armfor-1997.