United States v. Maze

21 C.M.A. 260, 21 USCMA 260, 45 C.M.R. 34, 1972 CMA LEXIS 800, 1972 WL 14113
CourtUnited States Court of Military Appeals
DecidedMarch 24, 1972
DocketNo. 23,108
StatusPublished
Cited by19 cases

This text of 21 C.M.A. 260 (United States v. Maze) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Maze, 21 C.M.A. 260, 21 USCMA 260, 45 C.M.R. 34, 1972 CMA LEXIS 800, 1972 WL 14113 (cma 1972).

Opinion

Opinion of the Court

Darden, Chief Judge:

This case ultimately presents the question of whether a specification alleging alteration of a public record charges an offense under Article 134, Uniform Code of Military Justice, 10 USC § 934 Before reaching that question we encounter preliminary issues involving our continued jurisdiction to conduct appellate review and possible mootness.

Lieutenant Maze was the accountable officer for property issued on receipts to his company from a higher echelon. He altered 19 slips, each of which originally recorded a return of a specified amount of property to a supply depot, to make them indicate a return of a larger quantity of the same property. The effect of the alteration was to diminish the property for which he was still accountable and to conceal shortages in his account.

Appellate review of this case has been prolonged, partly because an en banc reversal of a panel decision setting aside guilty findings and authorizing a rehearing conflicted with our decision in United States v Chilcote, 20 USCMA 283, 43 CMR 123 (1971). After our decision in Maze v United States Army Court of Military Review, 20 USCMA 599, 44 CMR 29 (1971), the original decision of the Army Court of Military Review was reinstated. The Judge Advocate General of the Army certified the case for review here under the provisions of Article 67(b)(2), Uniform Code of Military Justice, 10 USC § 867(b) (2).

During the pendency of appellate review, Lieutenant Maze was released to inactive duty under a regulation1 that provides for release of a reserve officer from active duty before completion of appellate review if the officer has been sentenced to a dismissal. Appellate defense counsel, citing United States v Goguen, 20 USCMA 527, 43 CMR 367 (1971), and Toth v Quarles, 350 US 11, 100 L Ed 8, 76 S Ct 1 (1955), suggest that, in effect, Lieutenant Maze has been separated from the service and that we are therefore without jurisdiction to continue appellate review.

In military law, jurisdiction to complete appellate review and to establish the finality of a con-viction continues despite an accused’s having been released from active duty, United States v Speller, 8 USCMA 363, 24 CMR 173 (1957), or his having received an administrative discharge, United States v Entner, 15 USCMA 564, 36 CMR 62 (1965). In United States v Goguen, supra, after the Government did not appeal the issuance of a writ of habeas corpus issued by a United States district court directing Goguen’s discharge from the custody of the Army, we considered the import of the order to be the termination of all military authority over the accused and that when the Army released the accused from its custody, it was bound to end the court-martial proceedings against him. The instant case involves only an inactive duty status, distinguishable from a court-ordered separation, as in Goguen, or an administrative discharge from any military status, as in Toth v Quarles, supra. Goguen limited but did not overrule United States v Speller, supra, which stands for continued appellate jurisdiction in the circumstances attending this appeal.

Next is the issue of possible mootness. The en banc decision of the Court of Military Review that the decision in Maze, supra, invalidated had approved a sentence limited to forfeiture of $100 a month for six months. Declaring that this sentence has either been executed or rendered nugatory by Lieutenant Maze’s release to inactive [262]*262duty, appellate defense counsel urge that regardless of our disposition of the certified question, the position of the parties would be substantially unchanged, and that under United States v Aletky, 16 USCMA 536, 37 CMR 156 (1967), and eases cited in that opinion, the certified question is academic or moot. This argument assumes that if we remanded the case, the Court of Military Review could approve no sentence in excess of-the one approved by che en "banc Court of Military Review decision that was invalid under Chil-cote, supra. Accepting that assumption for the resolution of this issue only, we still notice distinctions between this case and the cases cited to support the mootness argument. In Aletky, supra, the Court held a certified question academic when doubt existed about whether the then board of review had exercised legal or fact-finding powers and the accused had already been discharged as a result of a court-martial for another offense. The Court also declined to answer certified questions in United States v Gilley, 14 USCMA 226, 34 CMR 6 (1963), when it appeared that dismissed specifications that were in issue had had no impact on the sentence as adjudged and approved. In United States v Goldman, 21 USCMA 22, 44 CMR 76 (1971), the Court remanded a case in which the sentence could not have been changed and the only possible consequence was an overturning of one of the findings. As the case before us now stands, Lieutenant Maze’s conviction is not final. When our decision would determine the existence of a conviction, this is enough to/keep consideration from being moot, without regard to the question of his possible recovery of any forfeitures that may have been exacted. Cf. United States v McIvor, 21 USCMA 156, 44 CMR 210 (1972).

Appellate defense counsel press upon us other arguments supporting an end to this case. One of these is that Lieutenant Maze has suffered so disproportionately to his culpabality that additional prolongation of the litigation is unjustifiable. They assert that when Lieutenant Maze assumed responsibility for more than $2 million worth of Government property, Ihe had only a day and a half, because of the imminent departure of his predecessor, to conduct an inventory normally requiring seven to nine days. He accepted the word of a fellow officer that all the property was accounted for, according to appellate defense, and they urge that his alterations resulted from pressure within his command to keep losses of property below the level that would cause an investigation by a higher command. If we were functioning as fact finders or as sentence determiners, these considerations might be even more attractive, but our deciding questions other than legal ones would be an expansion of the role given to us.

We now reach the core issue. Ap-pellee’s position on the certified question is that the offense for Which he was convicted could be properly charged only as a form of forgery under Article 123 or under the third part of Article 134 (as an offense against the United States defined by nonmilitary law), Uniform Code of Military Justice, 10 USC §§ 923 and 934.

On the point that the forgery article preempts this prosecution as an Article 134 offense, defense counsel comment that the specifications allege all elements of forgery except an intent to defraud. When legislative history convinced this Court that Congress intended for one punitive article of the Code to cover the type of conduct concerned in a comprehensive and preclusive way, the Court would not sustain a conviction of a specification under Article 134 that eliminated one or more elements of the offense defined by the specific article concerned. United States v Norris, 2 USCMA 236, 8 CMR 36 (1953). But, under Norris, more must be shown than that the offense alleged under Article 134 includes all but one element of an offense under another article. The additional showing needed to impose a [263]*263limitation on the scope of the first and second parts of Article 134 is a legislative intent to cover a class of offenses in a complete way.

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Cite This Page — Counsel Stack

Bluebook (online)
21 C.M.A. 260, 21 USCMA 260, 45 C.M.R. 34, 1972 CMA LEXIS 800, 1972 WL 14113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-maze-cma-1972.