United States v. Martin

37 M.J. 546, 1993 CMR LEXIS 178, 1993 WL 143822

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: April 30, 1993
• Docket: No. NMCM 92 1226
• Status: Published

Opinions

FREYER, Senior Judge:

In accordance with his pleas, the appellant was found guilty of wrongful appropriation of a ring, aggravated assault, and wrongful communication of threats, in violation of Articles 121, 128, and 134, respectively, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 921, 928, 934. A military judge sentenced the appellant to confinement for two months, forfeiture of $523.00 pay per month for two months, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority approved the sentence without modification, and appellant’s case is now before this Court for review in accordance with Article 66, UCMJ. The appellant’s two assignments of error¹ lack merit, United States v. Weiss, 36 M.J. 224 (C.M.A.1992); United States v. Graf, 35 M.J. 450 (C.M.A.1992), and need not be discussed. The Court on its own, however, specified a third issue, which is set forth below and does warrant some discussion.

The facts of this case material to the specified issue are as follows: After entry of the appellant’s guilty pleas, the military judge conducted the requisite guilty plea providence inquiry. Rule for Courts-Martial (R.C.M.) 910, Manual for Courts-Martial, United States, 1984. He was informed by the appellant that the victim owed the appellant money, so the appellant went to the victim’s barracks room seeking payment. After the victim told the appellant to get out of his room, the appellant threatened “to kick [the victim’s] ass” if he was not paid. After a second rebuff, the appellant “got hyped,” beat the victim with his fists and legs, and struck the victim three times on the back of the head with a television set. The appellant then removed a gold diamond ring from the prostrate victim’s hand and informed the victim that he would hold the ring until the victim paid him the money owed. The appellant admitted that the victim did not consent to the taking of the ring, that the appellant did not have a right to take the ring, and that he took it just for collateral until the victim paid him his money. The appellant placed the value of the ring at approximately $100.00 to $150.00. The debt of which the appellant sought to secure payment with the ring was in the amount of $220.00. On the basis of these admissions, we specified the following issue:

WHETHER THE APPELLANT’S PLEA OF GUILTY TO WRONGFUL APPROPRIATION OF A RING ... WAS PROVIDENT IN LIGHT OF HIS STATEMENT THAT HE TOOK THE RING AS SECURITY FOR THE PAYMENT OF A DEBT WHICH EXCEEDED THE RING’S VALUE? SEE UNITED STATES V EGGLETON, 22 C.M.A. 503, 47 C.M.R. 920 (1973).

Under military law, an accused may not enter inconsistent, improvident or uninformed pleas of guilty, and inconsistencies and apparent defenses must be resolved, or else the guilty pleas must be rejected by the military judge. E.g., United States v. Newsome, 35 M.J. 749 (N.M.C.M.R.1992) (citing and quoting from cases). On the other hand, before a Court of Military Review may reject a guilty plea, the record of trial must show a substantial basis in law or fact for questioning the guilty plea. Id. at 751 (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)); Art. 59(a), UCMJ, 10 U.S.C. § 859(a).

The matter of the appellant’s liability for wrongful appropriation requires that his taking of the ring have been “wrongful,” which, in turn, depends on the respective rights to possession of the ring at the time of the taking, as distinguished from the manner in which the ring was taken. As noted in paragraph 46e(l)(d), Part IV, Manual for Courts-Martial, United States, 1984: “However, such an act [taking, obtaining, or withholding] is not wrongful ... if done by a person who has a right to the possession of the property either equal to or greater than the right of one from whose possession the property is taken, obtained, or withheld.” Thus, if the appellant had a right of possession of the ring equal or superior to the victim’s, how he asserted that right might affect his liability for other offenses, such as assault, but could not possibly render him liable under Article 121 as a thief or wrongful appropriator, nor under Article 122 as a robber. This conclusion follows inexorably from the elemental nature of larceny, wrongful appropriation, and robbery as being, in whole or at least in indispensable part, crimes against possessory interests in property.

Having said that, we are aware of no general legal principle whereby a mere unsecured creditor may elevate himself to the preferred status of a secured creditor by grabbing at will chattels belonging to the debtor as security for the debt, except in certain clearly defined relationships, not applicable here, such as innkeeper-guest and landlord-tenant, where a limited right to distrain property is afforded by law, or where the right to take security in the event of default is provided by agreement between the parties.

Cases such as United States v. Eggleton, 22 U.S.C.M.A. 503, 47 C.M.R. 920 (1973), are not to the contrary. The issue in Eggleton was not the wrongfulness, vel non, of the taking, but the intent, or mens rea, required for a violation of Article 121 or 122. Eggleton did not purport to establish it as a rule of property law that an unsecured creditor is generally entitled to seize chattels of the debtor as security for the debt. Eggleton merely held that the mens rea involved in taking the property of another to secure a debt did not amount to such a criminal intent as would support a conviction under Article 121 or 122. It is apparent that Eggleton was decided while the U.S. Court of Military Appeals still followed the “innocent purpose” doctrine, exemplified by United States v. Roark, 12 U.S.C.M.A. 478, 31 C.M.R. 64 (1961), whereby one who intentionally (in the sense of “knowingly”) perpetrated a “wrongful taking” (i.e., a taking which would be tortious under the civil law because it was from one with a superior right of possession and without legal justification or excuse) could yet lack the mens rea necessary for a violation of Article 121 or 122.

The “innocent purpose” doctrine was abandoned in United States v. Kastner, 17 M.J. 11 (C.M.A.1983), and United States v. Johnson, 17 M.J. 140 (C.M.A. 1984). Although neither of these cases addressed the effect of the new rule on Eggleton situations, it seems only logical that, if the taking by an unsecured creditor of chattels belonging to a debtor as security for the debt is a “wrongful taking,” and such taking is done knowingly and with the intent, even if not the purpose, of temporarily depriving the debtor of the “security,” the creditor may be held liable under Article 121 for wrongful appropriation without regard to the manner in which the chattels were taken. In our view, the appellant’s pleas to wrongful appropriation were, therefore, provident, and the manner of the taking is irrelevant to the providence of the pleas to that offense.

The findings of guilty and the sentence, as approved on review below, are affirmed. We note, however, that the court-martial order incorrectly relates the monthly forfeiture as being of $532.00, vice $523.00. A corrected court-martial order shall be issued.

Judge REED concurs.

1 . I. APPELLANT’S COURT-MARTIAL LACKED JURISDICTION BECAUSE THE MILITARY JUDGE WAS DESIGNATED IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION. (CITATIONS OMITTED). BECAUSE THIS ERROR IS JURISDICTIONAL, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. (CITATIONS OMITTED). II. THE COURT-MARTIAL HAD NO JURISDICTION BECAUSE THE MILITARY JUDGE’S LACK OF A FIXED TERM OF OFFICE LEFT THE MILITARY JUDGE INSUFFICIENTLY INDEPENDENT TO SATISFY THE FIFTH AMENDMENTS DUE PROCESS CLAUSE. (CITATIONS OMITTED). BECAUSE THE ERROR IS JURISDICTIONAL AND THE RECORD CONTAINS NO EVIDENCE OF A KNOWING WAIVER OF APPELLANT’S RIGHT TO AN INDEPENDENT MILITARY JUDGE, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL.