United States v. Ragins

11 M.J. 42, 1981 CMA LEXIS 15143
CourtUnited States Court of Military Appeals
DecidedMay 4, 1981
DocketNo. 38,277; NCM 78 1258
StatusPublished
Cited by18 cases

This text of 11 M.J. 42 (United States v. Ragins) 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. Ragins, 11 M.J. 42, 1981 CMA LEXIS 15143 (cma 1981).

Opinion

Opinion of the Court

EVERETT, Chief Judge:

Pursuant to his pleas, appellant was convicted by general court-martial of conspiracy to commit larceny, making false official statements, and larceny, in violation of Articles 81, 107, and 121 of the Uniform Code of Military Justice, 10 U.S.C. §§ 881, 907, [43]*43and 921, respectively.1 He was sentenced to a bad-conduct discharge, confinement at hard labor for 5 years, total forfeitures of pay and allowances, and reduction to E-l; but in accordance with a pretrial agreement, the convening authority approved only so much of the sentence as provided for a bad-conduct discharge, confinement at hard labor and total forfeitures for 2 years, and reduction to E-5. The approved findings of guilty and the sentence were affirmed by the United States Navy Court of Military Review — except for a minor modification of the forfeitures.

We granted review (8 M.J. 266) of these two issues concerning the providence of the pleas of guilty:

I. WHETHER APPELLANT’S PLEA TO THE SPECIFICATION OF CHARGE II, MAKING FALSE OFFICIAL STATEMENTS, WAS IMPROVIDENT? II. WHETHER APPELLANT’S PLEAS TO THE SPECIFICATIONS OF CHARGES I AND III, CONSPIRACY TO STEAL GOVERNMENT FUNDS AND LARCENY OF GOVERNMENT FUNDS, WERE IMPROVIDENT?

I

Appellant was assigned to the Commissary Store, Norfolk Naval Shipyard, Portsmouth, Virginia. The charges arose out of a scheme whereby he and Mr. John Rose, a deliveryman for Kotarides Baking Company, falsified invoices for bread deliveries to the commissary. Appellant receipted for bread purportedly delivered to the Commissary Store, as shown by the invoices, but the bread was sold by Rose to third parties for cash. The proceeds were then split between appellant and Rose. This arrangement, which continued from March 1977 until September 1977, resulted in receipts from the private bread sales which, according to appellant’s estimate, amounted to $25,838.05.

Appellant now asserts the improvidence of his guilty plea to Charge II, which alleged false official statements by “signing his name on Kotarides Baking Company sales invoices, said signing acknowledging receipt on behalf of Commissary Store, Norfolk Naval Shipyard, Portsmouth, Virginia, of deliveries of products of Kotarides Baking Company.” His premise is that the invoices involved were not “official statements” but were only receipts given to the baking company.

As to the other two charges the appellant’s argument for improvidence is that the larceny plotted and committed by appel[44]*44lant and Rose was a larceny of bread and not of money. Under this view the charges are substantially at variance with the facts elicited during the providence inquiry and otherwise since, instead of the Government’s being the victim of a larceny of currency, bread was stolen from the baking company.

II

During the providence inquiry concerning the charge under Article 107, the military judge ascertained from appellant that it was his duty to sign the invoices for bread deliveries. These invoices signified “to the company that the bread had actually been delivered”; also “those invoices controlled the billing that was to be made to the U. S. Government.” Sometimes an invoice would be signed indicating that bread had been delivered when no delivery had taken place; and sometimes the signed invoice showed a greater amount of bread than had actually been delivered. In each instance, the appellant knew the statements were false and the documents were made with the intent to deceive. Moreover, as appellant conceded, “[tjhey were to deceive the U. S. Government into thinking it had gotten a certain amount of bread when, in fact, it did not.”

This Court has noted “a ‘general analogy’ between the language of Article 107 [of the Uniform Code] and that of [18 U.S.C.] § 1001 ... which prohibits the knowing and willful making of a false or fraudulent statement ‘in any matter within the jurisdiction of any department or agency of the United States.’ ” United States v. Aronson, 8 U.S.C.M.A. 525, 528, 25 C.M.R. 29, 32 (1957). “Official,” as used in Article 107, is thus the substantial equivalent of the phrase “in any matter within the jurisdiction of any department or agency of the United States,” as found in 18 U.S.C. § 1001. Therefore, the relevancy of federal cases applying 18 U.S.C. § 1001 is obvious. See United States v. Davenport, 9 M.J. 364 (C.M.A.1980).

Examination of the federal precedents interpreting 18 U.S.C. § 1001 strongly suggests that the appellant made “official statements” for purposes of Article 107. For example, in United States v. Candella, 487 F.2d 1223 (2nd Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1563, 39 L.Ed.2d 872 (1974), the defendants were convicted of making false statements in matters within the jurisdiction of the Department of Housing and Urban Development. The defendants were owners of a moving company which had undertaken to move the property of four commercial tenants who had been forced to relocate because of federally funded urban renewal projects. Accordingly, the tenants were entitled to reimbursement from the City of New York for moving expenses. As explained in the Court’s opinion, the billing process was as follows:

The tenants, who had the initial obligation of paying the mover for his services, assigned their claims for reimbursement from the City to the mover, as permitted by the United States Department of Housing and Urban Development (HUD) regulation (24 C.F.R. § 41.12). The City then had the responsibility to process and pay the claims made by the movers. The City, in turn, was entitled to reimbursement by HUD. The City agency in charge, the Department of Relocation, based its payments on bills submitted by the moving company which were accompanied by so-called “bills of lading,” which detailed the number of man-hours worked on each day by the employees of the mover, plus an affidavit by the mover which attested to the accuracy of the bills of lading. The affidavits relating to the moves involved herein were executed on forms prepared by the City and not by HUD. The convictions appealed from were based on indictments charging that the bills of lading and affidavits submitted by the defendants for the four moves in question were false, in violation of 18 U.S.C. § 1001 and 18 U.S.C. § 2 (aiding and abetting).

Id. at 1224 (footnote omitted).

In rejecting a claim that the affidavits filed by the defendants were not “within the jurisdiction of” HUD, the Court of Appeals had noted that “[t]he United States became ultimately responsible for paying 100% of the moving expenses incurred by the four concerns involved.” Id. at 1226. [45]

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Bluebook (online)
11 M.J. 42, 1981 CMA LEXIS 15143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ragins-cma-1981.