United States v. McAuley

59 M.J. 697, 2004 CCA LEXIS 1, 2004 WL 42390
U S Coast Guard Court of Criminal Appeals·Decided January 9, 2004·No. CGCMG 0180; Docket No. 1177·Published

Opinion

BAUM, Chief Judge:

Appellant was tried by general court-martial, military judge alone. Pursuant to her pleas of guilty, entered in accordance with a pretrial agreement, Appellant was found guilty of the following offenses: one specification of conspiracy to steal and wrongfully dispose of military property of the United States of a value greater than $100, in violation of Article 81, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 881; one specification of wrongful disposition of military property of the United States of a value greater than $100, and one specification of sale of military property of a value greater than $100, in violation of Article 108, UCMJ, 10 U.S.C. § 908; and one specification of larceny of military property of the United States of a value greater than $100, in violation of Article 121, UCMJ, 10 U.S.C. § 921. The judge sentenced Appellant to a bad-conduct discharge, confinement for fifteen months, reduction to E-l, and a $200 fíne. The Convening Authority approved the adjudged sentence, but suspended all confinement in excess of eight months, pursuant to the sentence terms of the pretrial agreement. Before this Court, Appellant has assigned two errors.

Assignment I

In her first assignment, Appellant contends that her pleas of guilty were improvident because of mistaken advice by the military judge concerning the maximum confinement that she faced. The judge advised Appellant that confinement for thirty-one years could be imposed, rather than [698]*698four years confinement, which Appellant contends was the maximum authorized for the alleged offenses. According to Appellant, this misunderstanding affected the providence of her pleas, and, at a minimum, necessitates reassessment of the sentence. Issues raised by this assignment were addressed in the companion case of United States v. Ontiveros, 59 M.J. 639 (C.G.Ct.Crim.App.2003) and resolved contrary to Appellant’s position. That disposition is controlling here and the assignment is rejected for that reason.

Assignment II

In her second assignment, Appellant contends that the military judge erred in accepting her pleas of guilty to two separate specifications alleging wrongful disposition of the same military property. Appellant notes that she pled guilty to one specification alleging wrongful disposition of three body armor vests, military property of the United States, by giving them to Lee Pantellis,2 a former boyfriend, with the understanding that he would sell them and split the proceeds with her. She also pled guilty to a second specification of selling one of those same body armor vests to another individual on or about the same date. Appellant contends that the facts of the case establish only one wrongful disposition, not two. She asserts that without evidence that she somehow reacquired dominion and control over the vests that she gave to Lee Pantellis, she cannot be held liable for every subsequent disposition, including the later sale to the other individual. For that reason, Appellant submits that the military judge erred in accepting her pleas to both specifications. She contends that specification two, the sale of one vest, should be dismissed as multiplicious with specification one, the disposition of three vests, and the sentence reassessed accordingly. The factual basis for Appellant’s pleas was developed through a stipulation of fact and Appellant’s answers to the judge during the guilty plea inquiry. The Government maintains that Appellant’s responses to the judge and the stipulation of fact make it clear that she sold one piece of body armor to one individual and then separately disposed of the other two pieces. In reaching this conclusion, the Government finds the stipulation and Appellant’s inquiry answers compatible. In reality, they are at odds.

Stipulated Facts

The stipulation has Appellant driving to New York with the three body armor vests in a suitcase to be dropped off at Lee Pantellis’ apartment. It goes on to state that, upon arrival, she met Lee Pantellis’ brother, Ladd, and, together, they approached a Mr. Bornholdt, the apartment’s doorman, and Appellant negotiated a price with him for one of the body armor vests, removed it from the suitcase, and sold it to him for $200. According to the stipulation, it was after that transaction that she gave the suitcase containing the other two body armor vests to Lee Pantellis with the understanding that he would sell them and split the proceeds with her. This account clearly establishes two separate offenses: a sale by Appellant of one vest to Mr. Bornholdt, the apartment doorman, and disposal by her of the other two body armor vest to Lee Pantellis.

Responses to the Judge’s Plea Inquiry

The sequence of events changed in Appellant’s description to the judge. After the judge read the stipulation, she asked Appellant if she took the vests to New York, and sold one to one fellow and gave two to somebody else, while there. Appellant conferred with her counsel and responded as follows:

ACC: Ma’am, actually, one weekend I went up and dropped them off, and it wasn’t until the following weekend that one of the vests was sold and the other two vests remained at New York.
MJ: So on December 29th you took them to New York, but you didn’t actually sell one that weekend?
ACC: That’s correct, ma’am. I’m not positive on the dates, but it was on or about the 29th of December.
MJ: You did sell to Mr. Bornholdt but not on the 29th of December. Is that what you’re telling me?
[699]*699ACC: Yes, ma’am. It wasn’t the same time that the vests were dropped off that one of the vests was sold to Mr. Bornholdt.
MJ: So you took a suitcase with three vests to New York. Dropped them off at Mr. Pantellis’?
ACC: Yes, ma’am.
MJ: On the 29th of — on or about the 29th of December. He has the suitcase with the three vests?
ACC: Yes, ma’am.
MJ: You went back at a later time? And that’s when one was sold to Mr. Bornholdt?
ACC: Yes, ma’am.
MJ: And Mr. Pantellis had the other two, still?
ACC: Yes, ma’am.
MJ: You gave those vests to Mr. Pantellis with the understanding that he would sell them?
ACC: Yes, ma’am.
MJ: And you would split the proceeds with him?
ACC: Yes, ma’am.
MJ: And then you would take the proceeds of your share and split them with Petty Officer Ontiveros?
ACC: Yes, ma’am.
MJ: You took three vests?
ACC: Yes, ma’am.

R. at 30-31. These answers do not explicitly state that Appellant personally arranged and consummated the sale to Mr. Bornholdt in a face-to-face meeting with him.

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United States v. McAuley, 59 M.J. 697, 2004 CCA LEXIS 1, 2004 WL 42390 (uscgcoca 2004).

59 M.J. 697 (United States v. McAuley) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

United States v. Bullman
56 M.J. 377 (Court of Appeals for the Armed Forces, 2002)
United States v. Prater
32 M.J. 433 (United States Court of Military Appeals, 1991)
United States v. Higgins
40 M.J. 67 (United States Court of Military Appeals, 1994)
United States v. Ontiveros
59 M.J. 639 (U S Coast Guard Court of Criminal Appeals, 2003)