United States v. Moore

10 M.J. 724, 1981 CMR LEXIS 824
CourtU S Coast Guard Court of Criminal Appeals
DecidedJanuary 22, 1981
DocketCGCMS 23530; Docket No. 827
StatusPublished

This text of 10 M.J. 724 (United States v. Moore) is published on Counsel Stack Legal Research, covering U S Coast Guard Court of Criminal 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. Moore, 10 M.J. 724, 1981 CMR LEXIS 824 (uscgcoca 1981).

Opinion

OPINION

MORGAN, Chief Judge:

Seaman Apprentice Nilger D. Moore, II, USCG, was tried by a special court-martial military judge on 20, 21 and 22 February 1980. The accused pleaded guilty to and was convicted of two offenses of unauthorized absence in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 and an offense of impersonating a [725]*725petty officer in violation of Article 134, UCMJ, 10 U.S.C. § 934. The accused pleaded not guilty to one offense of wrongful appropriation and six larceny offenses in violation of Article 121, UCMJ, 10 U.S.C. § 921. He was acquitted of the wrongful appropriation offense and of one of the larcenies but was convicted of the other five larceny offenses. The military judge sentenced the accused to be confined at hard labor for four months, to forfeit $200.00 per month for four months, to be reduced to pay grade E-l and to be discharged from the service with a bad conduct discharge. The convening authority approved the findings of guilty and the sentence. The officer exercising general court-martial jurisdiction set aside the convictions of one of the larceny offenses and of the impersonation charge. Upon reassessment, the sentence was approved but execution of the bad conduct discharge was suspended for the period of confinement and six months thereafter.

The validity of the accused’s conviction of two of the larceny offenses is contingent upon the admissibility respectively, of an oral admission made by the accused to a Coast Guard Special Agent and of the fruits of a search of the accused’s locker authorized by the commanding officer of his unit. Appellate defense counsel contends as was urged at trial that the accused’s incriminating statement was obtained without proper warning of his rights as required by Article 31, 10 U.S.C.A. § 831, UCMJ and that the stolen items recovered from his locker were seized in the course of an illegal search.

On the evening of 17 December 1979 a wallet containing $177.00 belonging to a Seaman Apprentice Chase was stolen from Chase’s pants hanging at the foot of his bunk while he slept. The currency consisted of two fifty dollar bills, three twenty dollar bills, one ten and seven ones. The accused was one of Chase’s roommates. He came under suspicion since he was known to have been near the foot of Chase’s bunk at the time of the theft. This suspicion intensified when the accused was observed paying for a $149.00 purchase from the exchange with two fifty dollar bills and three twenty- dollar bills on the morning of 18 December 1979.

The accused was interviewed by Lieutenant Gill, the barracks officer, and by Special Agent Melia of Coast Guard Intelligence, respectively, on 18 and 19 December respecting the theft of Chase’s wallet and the source of the money he had used to make the purchase at the exchange. The accused denied taking Chase’s money and stated that his brother had sent him a $250.00 Wells Fargo money order from the West Coast.

Having learned through further investigation that the accused had no brother on the West Coast and that he could not have cashed a money order at a Baltimore Bank on the evening of 17 December 1979 as he had said he did, Special Agent Melia arranged to interview the accused again on 28 December 1979. Special Agent Melia met the accused in a Chief Bell’s office in Fleet Hall at about 10:30. A Chief Warrant Officer Kosick was also present but did not participate in the interview. At the outset, Special Agent Melia advised the accused that he was suspected of stealing Chase’s money and gave him a standard form containing the advice required by Article 31, UCMJ, including appropriate advice concerning the right to consult counsel and have counsel present during the interview. Special Agent Melia orally reiterated the various rights. The accused read the form, signified his understanding of each right enumerated by affixing his initials alongside and signed the form indicating his understanding of his rights. A second part of the form indicating his consent to be interviewed was not signed by the accused nor was a third part indicating a desire to make a written statement signed.

In reply to Special Agent Melia’s questions the accused admitted that the money he spent in the exchange was Chase’s. He then said that he didn’t want to talk about it anymore and Special Agent Melia terminated the interview. Subsequently, Special Agent Melia asked the accused if he would give him a written statement and the accused declined to do so.

[726]*726The appellant contends before us, as he did at trial, that his admission to using Chase’s money was obtained in violation of Article 31 since he was not advised and did not understand that the term statement included an oral remark as well as a written statement.

The undisputed testimony of Special Agent Melia reveals that the accused was fully advised of his rights on the morning of 28 December 1979 essentially in the very words of Article 31. He was also properly advised of his right to consult with and have counsel present during the interview pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and U. S. v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). The accused read and signified his understanding of the advice respecting his various rights before he was interrogated by Special Agent Melia. The record also reveals that the accused is a person of ordinary competence.

A warning given in the language of Article 31 sufficiently apprises a suspect of his right not to make either oral, written or non-verbal statements. U. S. v. O’Brien, 3 U.S.C.M.A. 325, 12 C.M.R. 81 (1953); U. S. v. Johnson, 33 C.M.R. 547 (ABR 1963) petition for review by USCMA denied 33 C.M.R. 436. The question of whether the requisite advice was given and whether the accused understood his rights is for the trier of fact. In this case, the military judge heard the evidence and determined that the accused’s oral admission to Special Agent Melia was voluntary. There is ample competent evidence in the record to support the military judge’s determination. We are equally convinced beyond a reasonable doubt that the accused’s incriminating oral statement was voluntarily and knowingly made. See U.S. v. Hernandez, 4 U.S.C.M.A. 465, 16 C.M.R. 39 (1954); U. S. v. Heaney, 9 U.S.C.M.A. 6, 25 C.M.R. 268 (1958); U. S. v. O’Such, 16 U.S.C.M.A. 537, 37 C.M.R. 157 (1967); U. S. v. Bahnemann, 3 C.M.R. 790 (AFBR 1960); U. S. v. Meade, 20 U.S.C.M.A. 510, 43 C.M.R. 350 (1971); U. S. v. Molette, 3 U.S.C.M.A. 674, 14 C.M.R. 92 (1954); U. S. v. Graham, 21 U.S.C.M.A. 589, 45 C.M.R. 263 (1972); U. S. v. Girard, 23 U.S.C.M.A. 263, 49 C.M.R. 438 (1975).

Seaman Rafael Figueroa was relieved of duty aboard the U.S. Coast Guard Cutter TAMAROA at the Coast Guard Yard, Baltimore between 0800 and 0830 the morning of 1 January 1980. Upon leaving the TAMAROA, Figueroa went to the accused’s room in the barracks to obtain the keys and registration for his car which he had loaned to the accused the day before. The accused was asleep when Figueroa entered his room.

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Related

Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
United States v. O'Brien
3 C.M.A. 325 (United States Court of Military Appeals, 1953)
United States v. Molette
3 C.M.A. 674 (United States Court of Military Appeals, 1954)
United States v. Hernandez
4 C.M.A. 465 (United States Court of Military Appeals, 1954)
United States v. Heaney
9 C.M.A. 6 (United States Court of Military Appeals, 1958)
United States v. O'Such
16 C.M.A. 537 (United States Court of Military Appeals, 1967)
United States v. Tempia
16 C.M.A. 629 (United States Court of Military Appeals, 1967)
United States v. Meade
20 C.M.A. 510 (United States Court of Military Appeals, 1971)
United States v. Sparks
21 C.M.A. 134 (United States Court of Military Appeals, 1971)
United States v. Graham
21 C.M.A. 489 (United States Court of Military Appeals, 1972)
United States v. White
21 C.M.A. 583 (United States Court of Military Appeals, 1972)
United States v. Ezell
6 M.J. 307 (United States Court of Military Appeals, 1979)
United States v. Land
10 M.J. 103 (United States Court of Military Appeals, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
10 M.J. 724, 1981 CMR LEXIS 824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-moore-uscgcoca-1981.