United States v. Olson

25 M.J. 293, 1987 CMA LEXIS 3998
CourtUnited States Court of Military Appeals
DecidedDecember 14, 1987
DocketNo. 54,303; ACM S26706
StatusPublished
Cited by33 cases

This text of 25 M.J. 293 (United States v. Olson) 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. Olson, 25 M.J. 293, 1987 CMA LEXIS 3998 (cma 1987).

Opinion

Opinion of the Court

EVERETT, Chief Judge:

Pursuant to his pleas, appellant was convicted by a special court-martial of presenting false travel vouchers in his name totaling $646.50, presenting a false travel voucher of another airman for $474.44, and obstructing justice, in violation of Articles 132 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 932 and 934, respectively. The sentence as adjudged and approved was a bad-conduct discharge, a fine of $1,000.00, and reduction to the grade of E-2. The Court of Military Review affirmed in a per curiam opinion. The issue specified by this Court was:

WHETHER THE GOVERNMENT COMPLIED WITH THE PRETRIAL AGREEMENT, AS EXPLAINED AT TRIAL.

I

Originally, it had been alleged in one specification that Olson had submitted false travel vouchers totaling $1,806.00 and in a second specification that he had been an accomplice in the presenting of another voucher for $1,121.47. However, later the two specifications were amended to the lesser amounts of which he was found guilty. The reduction in amount apparent ly resulted from a dispute as to the correctness of certain vouchers which had been included in the computations on which the specifications had originally been based.

Subsequently, appellant entered into a pretrial agreement whereunder he “agree[d] ... to make restitution to the UNITED STATES of any monies owed by him as a result of the charges against him.” Pursuant to that agreement, Olson paid $646.50 — the amount alleged in the false-claim specification as amended. During the providence inquiry, the military judge specifically asked Olson whether he “wish[ed] to take issue with that amount”; and there was a negative response. Subsequently, defense counsel asked whether appellant had “made restitution in this case” and had “basically paid back the Air Force the extra money that ... [appellant] got”; and Olson gave an affirmative answer. In his argument on sentence, trial counsel conceded that appellant had “made restitution.” Later, when the military judge was discussing the terms of the pretrial agreement, he commented that “[i]t is my perception, based on what I have heard that the second condition has been met,” whereupon both civilian defense counsel and trial counsel stated their concurrence.

Soon after trial, the finance office administratively collected $1,107.07 from appellant and advised him that he could contest this recoupment action through administrative channels or by filing a claim with the General Accounting Office.1 It is unclear from the record whether this sum was collected with respect to travel vouchers which had been included in computing the amount of the false claim with which Olson initially was charged or whether there was some other reason for this action. Upon becoming aware of the recoupment, appellant protested vigorously; and he unsuc[295]*295cessfully requested both the military judge and the convening authority to order a hearing as to the providence of his guilty pleas in light of this allegedly unanticipated subtraction from his pay.

On appeal, appellant claims that the pretrial agreement — together with his payment of the $646.50 and the ensuing acknowledgment by trial counsel that the restitution requirement of the pretrial agreement had been met — constituted satisfaction of any claim that the Government had against him with respect to any false travel vouchers. Moreover, appellant contends that, since the Government did not comply with the pretrial agreement, he now is entitled to have his pleas of guilty set aside.2

II

In recent years, there has been increased concern for victims of crime. See, e.g., United States v. Solorio, 21 M.J. 251, 255 (C.M.A.1986), aff'd, — U.S. —, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987). Congress and State legislatures have sought to guard more fully the rights of victims.3 To help achieve this goal, restitution for a victim of crime often is imposed as a condition of probation or a suspended sentence. Thus, 18 U.S.C. .§ 3651 provides that, as a condition of probation, “the defendant ... [m]ay be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had.” In accord with a liberal construction of this statutory authority, a federal district judge may require

restitution in the amount of actual damage and loss to the victim, even if that exceeds the amount in the counts pleaded to, when (a) the defendant has obtained the proceeds as part of an ongoing scheme to defraud which extends over time, and (b) the amount of the damages to the victim has been established with specificity and admitted to by the defendant in the indictment, the plea agreement, and plea and presentence proceedings.

United States v. Davies, 683 F.2d 1052, 1054 (7th Cir.1982); see also United States v. Suter, 755 F.2d 523, 526-27 (7th Cir.), cert. denied, 471 U.S. 1103, 105 S.Ct. 2331, 85 L.Ed.2d 848 (1985).

In support of its interpretation of 18 U.S.C. § 3651, the Court of Appeals reasoned in Davies that limiting restitution to the victims of those alleged offenses as to which the defendant pleaded guilty

would severely restrict plea-bargaining in multicount indictment cases, because the Government would be prohibited from entering plea bargains as to some counts if that would eliminate restitution for further illegal proceeds, even though receipt of such proceeds was acknowledged by the defendant, as here. It would also require the Government to obtain indictments with hundreds of counts in cases ... where the scheme is one of widespread but individually small acts of fraud. Finally, it would not comport with the rehabilitative purpose of restitution as a condition of probation, which is to foster a defendant’s acceptance of responsibility for unlawful acts.

683 F.2d at 1055.

The Manual for Courts-Martial adverts to restitution in connection with pretrial agreements. According to R.C.M. 705(c)(2)(C), Manual for Courts-Martial, United States, 1984, a pretrial agreement may include “[a] promise” by the accused “to provide restitution.” The Analysis of this Rule, page A21-35, states that authorization of a restitution clause “is based on United States v. Callahan, 8 M.J. 804 (N.C.M.R.1980); United States v. Brown, 4 M.J. 654 (A.C.M.R.1977).” Since the provi[296]*296sion for restitution in R.C.M. 705(c)(2)(C) is even less restrictive than that in 18 U.S.C. § 3651 and does not purport to be limited in any way to “loss caused by the offense for which” the accused is entering a guilty plea, we conclude that in court-martial proceedings a pretrial agreement may call for restitution by the accused of any loss caused by misconduct related in any way to any offense for which the accused has been charged — regardless of his plea thereto.

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25 M.J. 293, 1987 CMA LEXIS 3998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-olson-cma-1987.