United States v. Pacheco

56 M.J. 1, 2001 CAAF LEXIS 1199, 2001 WL 1153972

• Court: Court of Appeals for the Armed Forces
• Decided: September 28, 2001
• Docket: No. 00-0346; Crim.App. No. 9500002
• Status: Published

Opinions

Chief Judge CRAWFORD

delivered the opinion of the Court.

Contrary to his pleas, appellant was convicted by officer and enlisted members in Port-au-Prince, Haiti, of dereliction of duty and larceny, in violation of Articles 92 and 121, Uniform Code of Military Justice, 10 USC §§ 892 and 921, respectively. The convening authority approved the sentence of a bad-conduct discharge, 6 months’ confinement, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in a short form, unpublished opinion. We granted review of the following issue:

WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE FINDINGS THAT APPELLANT WAS GUILTY OF LARCENY AND DERELICTION OF DUTY WHERE APPELLANT WAS COMPLYING WITH A LAWFUL ORDER

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We hold that the evidence is not only legally sufficient to prove appellant was derelict in not securing a weapons cache found during Operation Restore Democracy, Port au Prince, Haiti, but also that it is legally sufficient to prove he stole a Desert Eagle pistol from the same cache.

Under Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the standard used to determine whether evidence is legally sufficient requires all relevant evidence to be viewed “in the light most favorable to the prosecution,” including “reasonable inferences” to be drawn from that evidence. Applying that standard here, the evidence supports the finding that appellant was not acting pursuant to an order given by Sergeant (SGT) Marjamaki, but rather, that he was acting with SGT Marjamaki to steal a Desert Eagle .357 Magnum and give it to Private (PVT) Mangold.

Appellant was a member of a unit assigned to guard a weapons cache found during Operation Restore Democracy. First Lieutenant (1LT) Melano, the company executive officer and acting commanding officer, took an M-79 grenade launcher and a MAC system machine gun from the weapons cache to be kept as unit trophies. 1LT Melano testified that at that time, he was “under the impression from my battalion commander that we could legitimately take some weapons back with us.” With 1LT Melano’s permission, SGT Marjamaki gave a bayonet from the weapons cache to each member of his squad. SGT Marjamaki testified that between the 9th and the 11th of October, he and appellant took three weapons from the bunker.

The day before President Aristide returned to Haiti, PVT Mangold came to the bunker complex. SGT Marjamaki testified that PVT Mangold wanted a Desert Eagle, and that appellant went and got him one after SGT Marjamaki gave appellant the keys. Although the evidence shows that SGT Marjamaki told appellant to obtain the Desert Eagle for PVT Mangold, we need not consider whether such a directive constituted an apparently lawful order. The testimony of Private First Class (PFC) Holland — which was not challenged by the defense — that SGT Marjamaki disavowed in appellant’s presence any knowledge of or responsibility for appellant’s taking of the weapon effectively nullifies appellant’s argument that he acted pursuant to an apparently lawful order in taking the Desert Eagle.

The day President Aristide returned, Sergeant First Class Jones told appellant and the others in the squad that they could not have any weapons, including any old bayonets. That same evening, SGT Marjamaki testified appellant told him he could take a weapon apart and sew it into his rucksack. In addition, when appellant’s unit returned to the main base, they were told there was going to be a shakedown because of some missing weapons. SGT Marjamaki testified that after this warning, appellant said he would not surrender his weapons, and the authorities would never find them. After the shakedown, two weapons were found next to a trash dump and one was found next to a wall.

On cross-examination, SGT Marjamaki said that appellant not only wanted the Desert Eagle, but the case cleaning kit and everything that went with it. He was going to take them and ship them back to the States.

The findings of guilty are also supported by PVT Mangold’s testimony that he went to the bunker with SGT Marjamaki and received a Desert Eagle pistol from appellant. According to PVT Mangold, the weapon was not for a museum; nor was it a war trophy. It was for his own personal use. In addition to the pistol, PVT Mangold was given a cleaning kit, brush, warranty, and a key to disassemble the weapon. PVT Mangold testified that he took the weapon out of the box, threw the box away, gave the weapon to PVT Sweeny, who was going on emergency leave to the United States, and told PVT Sweeny he would pay him later for his trouble in smuggling the weapon into the United States.

PFC Holland also testified that he remembered the night when appellant gave the weapon to PVT Mangold. In fact, he saw SGT Marjamaki give appellant the key to go to the bunker and get a weapon for PVT Mangold. He also heard SGT Marjamaki say that “if he [appellant] gets caught, tell them I don’t know nothing about it.” Later, PFC Holland had a conversation with appellant about smuggling the weapon into the United States.

To sustain a conviction for larceny under the UCMJ, the following elements must be proven:

(a) That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person;

(b) That the property belonged to a certain person;

(c) That the property was of a certain value, or of some value; and

(d) That the taking, obtaining, or withholding by the accused was with the intent permanently to deprive or defraud another person of the use and benefit of the property or permanently to appropriate the property for the use of the accused or for any person other than the owner.

Para. 46b(l), Part IV, Manual for Courts-Martial, United States (2000 ed.).

The wrongfulness of appellant’s taking of the weapon, as well as his intent to permanently deprive the owner of the use and benefit of the weapon, is further evidenced by the fact that he did not return the Desert Eagle pistol or inform the authorities of its taking after being informed that the taking of weapons was not permitted and that all weapons had to be returned prior to the shakedown.

To sustain a conviction of willful dereliction of duty under the UCMJ, the following elements must be proven:

(a) That the accused had certain duties;

(b) That the accused knew or reasonably should have known of the duties; and

(c) That the accused was willfully derelict in the performance of those duties.

Para. 16b(3), Part IV, Manual, supra.

Appellant’s knowledge of his duty to safeguard the weapon from unlawful appropriation or retention — including appropriation or retention by unit members seeking to obtain and keep weapons as trophies — and his willful dereliction of this duty are established by the evidence that after he was informed that the taking of weapons as trophies was not permitted, appellant failed either to return the weapon or to inform the authorities of its taking.

The evidence presented at trial circumstantially shows that those who possessed the weapons did not think they were entitled to take them, keep them, and show them to their friends and relatives as war trophies. Thus, the court below was correct in concluding that the evidence was legally sufficient as to the findings of guilty of larceny and dereliction of duty.

The decision of the United States Army Court of Criminal Appeals is affirmed.

Based on the Government concession, the case should be returned to the Judge Advocate General of the Army to determine whether appellant is entitled to relief under United States v. Gorski, 47 MJ 370 (1997).