United States v. Mitchell

36 M.J. 882, 1993 CMR LEXIS 166, 1993 WL 32317
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJanuary 15, 1993
DocketNMCM 92 0088
StatusPublished
Cited by1 cases

This text of 36 M.J. 882 (United States v. Mitchell) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mitchell, 36 M.J. 882, 1993 CMR LEXIS 166, 1993 WL 32317 (usnmcmilrev 1993).

Opinion

MOLLISON, Judge:

The principal issue in this appeal concerns the providence of guilty pleas to specifications alleging violations of a state penal code, prosecuted at trial by special court-martial under Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934, and the Federal Assimilative Crimes Act, 18 U.S.C. § 13.

Consistent with his pleas, the appellant was found guilty of one specification of violating a lawful general regulation by wrongfully possessing dangerous weapons, one specification of wrongfully possessing an unauthorized armed forces identification card, and two specifications of violating § 708-8200 of Hawaii Revised Statutes by committing cable television service fraud, all contrary to Articles 92 and 134, UCMJ, 10 U.S.C. §§ 892, 934. The violations of Haw.Rev.Stat. § 708-8200 were charged as Article 134 violations by their adoption as federal law through the Federal Assimilative Crimes Act, 18 U.S.C. § 13. Manual for Courts-Martial (MCM), United States, 1984, Part IV, ¶ 60e(4)(e)(ii). A military judge sentenced the appellant to confinement for 75 days, forfeiture of $502.00 pay per month for three months, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority approved the adjudged sentence, however, pursuant to a pretrial agreement, suspended confinement in excess of 30 days and forfeitures of pay in excess of $300.00.1

The appellant’s case is now before this Court for review in accordance with Article 66, UCMJ, 10 U.S.C. § 866. This Court may affirm only such findings of guilty and the sentence or such part of the sentence as it finds correct in law and fact and determines on the basis of the entire record should be approved. Art. 66(c), UCMJ, 10 U.S.C. § 866(c). The appellant asserts seven errors were committed in the course of [884]*884his court-martial proceedings.2 We may hold a finding or sentence incorrect on the ground of an error of law only if the error materially prejudices the substantial rights of the appellant. Art. 59(a), UCMJ, 10 U.S.C. § 859(a). We find no such error in the appellant’s court-martial, and, with a minor modification, affirm the findings and the sentence.

The appellant’s second assignment of error merits discussion. The remaining assignments of error do not. United States v. Weiss, 36 M.J. 224 (C.M.A.1992); United States v. Graf, 35 M.J. 450 (C.M.A.1992); United States v. Burnette, 35 M.J. 58 (C.M.A.1992); United States v. Evans, 35 M.J. 754 (N.M.C.M.R.1992); United States v. Lowry, 33 M.J. 1035 (N.M.C.M.R.1991).

Article 134, UCMJ, renders punishable at trial by courts-martial all neglects and disorders to the prejudice of good order and discipline in the armed forces and all conduct of a nature to bring discredit upon the armed forces. 10 U.S.C. § 934; MCM, 1984, Part IV, U 60a-c. Article 134 also renders punishable at trial by courts-martial non-capital federal crimes. 10 U.S.C. § 934; MCM, 1984, Part IV, U 60c(4). The Federal Assimilative Crimes Act provides:

Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in [18 U.S.C. § 7, defining the special maritime and territorial jurisdiction of the United States], is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.

18 U.S.C. § 13.

Haw.Rev.Stat. § 708-8200 provides that a person commits the felony of cable television service fraud if the person knowingly distributes a cable television device and knows that the device is intended to be used to obtain cable television service without the payment of applicable charges. In specifications 2 and 3 of Charge IV, the [885]*885appellant was charged with this crime under Article 134, by means of the state statute’s adoption into federal law by the Federal Assimilative Crimes Act, 18 U.S.C. § 13.

The appellant pled guilty to these two specifications. Before the military judge accepted the appellant’s guilty pleas, he conducted the requisite guilty plea providence inquiry. Rule for Courts-Martial (R.C.M.) 910, Manual for Courts-Martial, United States, 1984. During that inquiry, the appellant advised the military judge that he ordered by telephone five cable television “descrambling” devices from a firm in California; that the devices were sent to him at his barracks in Hawaii by United Parcel Service; that he paid approximately $240.00 for the five devices; that these devices were capable of being installed on cable television service lines in order to decode the scrambled, unviewable signal of premium television cable channels, such as HBO, Cinemax, and Showtime, and thereby view them without paying the applicable charges; that on 17 October 1991, on board Naval Air Station Barbers Point, Hawaii, he sold two of the devices for $100.00 each to two other sailors for the purpose of installation on cable television service lines; that the appellant knew the sailors intended to install the devices in order to decode the scrambled signal of premium television cable channels, and thereby view them without paying the applicable charges; and, that the appellant had in fact instructed the sailors how to “hook it up so they could.” Record at 22-29. The appellant candidly admitted, “It was a lot cheaper that way.” Record at 28.

The military judge also informed the appellant that in order for him to be guilty of this Article 134 offense, his conduct must be prejudicial to good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces. Record at 23. The appellant admitted the accuracy of this element. Record at 29. The military judge went on to quiz the appellant as to how he felt it might constitute such conduct.

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39 M.J. 796 (U.S. Navy-Marine Corps Court of Military Review, 1994)

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Bluebook (online)
36 M.J. 882, 1993 CMR LEXIS 166, 1993 WL 32317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mitchell-usnmcmilrev-1993.