United States v. McCollum

13 M.J. 127, 1982 CMA LEXIS 17985
CourtUnited States Court of Military Appeals
DecidedMay 24, 1982
DocketNo. 40426; CM 15241
StatusPublished
Cited by14 cases

This text of 13 M.J. 127 (United States v. McCollum) 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. McCollum, 13 M.J. 127, 1982 CMA LEXIS 17985 (cma 1982).

Opinions

OPINION OF THE COURT

COOK, Judge:

This case concerns the sufficiency of the Government’s pleadings alleging extortion. 11 M.J. 151 (C.M.A.).

Appellant was tried by a special court-martial composed of officer and enlisted [128]*128members at Conn Barracks, Schweinfurt, Germany. Contrary to his pleas, he was convicted of one specification of assault and two specifications of extortion, in violation of Articles 128 and 127, Uniform Code of Military Justice, . 10 U.S.C. §§ 928 and 927, respectively. He was sentenced to a bad-conduct discharge, confinement at hard labor for 4 months, forfeiture of $299 pay per month for 4 months, and reduction to the grade of E-l. The convening authority approved the sentence, and the Army Court of Military Review affirmed in a short-form opinion.

I

The Government’s case consisted of the testimony of the two victims, Private Merrill and Private First Class Flores. Merrill shared a room in the barracks with a soldier named Alexander. One morning after there had been a party in the room the previous night, Merrill found a “bowl” — a hashish smoking device — in the room. Merrill hid the bowl on a ledge behind Alexander’s stereo. Discovering it there, Alexander confronted Merrill, who denied that it was his intent to “plant” it there and maintained that he had just put it there until he could get rid of it. Jones, a friend of Alexander, threatened to do something about the matter if Alexander did not.

Several 'days later, in the late evening, Merrill and his friend Flores were induced to enter the unit classroom because “someone wanted to talk to [Merrill].” There, they were confronted by approximately nine hostile soldiers, including appellant but not Alexander. Merrill and Flores were accused of being “nares”; they were threatened, and then beaten. Flores made private accommodations with the ringleader, Meers, (he gave Meers a “con story”), and was thereafter left alone. Merrill held out longer and suffered proportionately. Ultimately, Meers wrote out a statement and ordered Merrill to copy it in his own hand. The statement amounted to a confession that Merrill was a “narc” and worked for the first sergeant. In addition, Jones ordered Merrill to write that he had “planted” the “bowl” in Alexander’s area. Merrill was then beaten until he complied.

Merrill recalled that appellant at one point left the room, on Meers’ instructions, and returned with a wet towel, which Meers used to beat them. Appellant then stood watch outside the door, while the beatings ensued. On at least one occasion, appellant returned to the room briefly.

Flores, on the other hand, was suffering the consequences of excessive alcohol consumption and was less aware of his environment. He did not know who had fetched the towel or that appellant stood guard at the door. He did recall seeing appellant on several occasions during the incident, but his attention was directed principally at Meers. Neither victim indicated that appellant personally threatened or struck them, and the record makes clear that he was convicted as a principal.

After the episode, Meers threatened to use the statement against Merrill if Merrill told anyone what had happened there that night.

II

The extortion specifications allege that appellant “did ... with intent unlawfully to obtain statements against the interests of ... [Merrill and Flores] ... communicate to ... [Merrill and Flores] a threat to cause ... [them] bodily harm.” During a pretrial hearing, trial defense counsel moved to dismiss the extortion charge and its specifications for failure to state an offense. Trial defense counsel argued that the Government had failed to allege that appellant intended to obtain something of value. The Government countered that appellant need only have intended to obtain an advantage, and that the Government would prove that obtaining statements against the witnesses’ interests constituted an advantage. The military judge denied the motion without comment, and the defense made no further motions.

III

Article 127 (Extortion) condemns the communication of “threats to another per[129]*129son with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity.” Similarly, the Manual for Courts-Martial lists the elements of extortion as:

(a) That the accused communicated certain threats to another, as alleged; and
(b) that he intended to unlawfully obtain something of value, or any acquittance, advantage, or immunity, as alleged.

Para. 206, Manual for Courts-Martial, United States, 1969 (Revised edition). The discussion in paragraph 206 preceding the elements asserts that “[a]n intent to obtain any advantage or immunity may include an intent to make a person do an act against his will.”

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Cite This Page — Counsel Stack

Bluebook (online)
13 M.J. 127, 1982 CMA LEXIS 17985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mccollum-cma-1982.