United States v. Riddle

41 M.J. 673, 1994 CCA LEXIS 78, 1994 WL 679907
CourtUnited States Air Force Court of Criminal Appeals
DecidedOctober 14, 1994
DocketACM 30107
StatusPublished
Cited by3 cases

This text of 41 M.J. 673 (United States v. Riddle) is published on Counsel Stack Legal Research, covering United States Air Force 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. Riddle, 41 M.J. 673, 1994 CCA LEXIS 78, 1994 WL 679907 (afcca 1994).

Opinions

OPINION OF THE COURT

PEARSON, Judge:

In a bench trial, the military judge convicted appellant, contrary to his pleas, of attempting to conspire with Rebecca M. Petrie to steal military pay entitlements by falsely claiming that they were married, attempting to knowingly sign various official documents falsely stating he was married, and forging his squadron section commander’s signature to a basic allowance for subsistence (BAS) form. Violations of Articles 80 and 123, UCMJ, 10 U.S.C. §§ 880 and 923. The military judge sentenced appellant to a bad-conduct discharge, 8 months confinement, and reduction to E-l, which the convening authority approved.

Appellant claims now, as he did at trial, that the evidence is insufficient to prove his guilt of the attempt offenses because he was legally married to Rebecca by common law, attempted conspiracy is not an offense, and the evidence is insufficient to prove the forgery because the prosecution failed to call a handwriting expert. We disagree and affirm.

FACTS

On February 20, 1992, Air Force officials at Shaw Air Force Base, South Carolina, charged appellant with stealing pay entitlements; conspiring with Ms. Petrie to do so by altering her brother’s Ohio marriage certificate to make it falsely appear she and appellant were married on April 20, 1991; knowingly signing various official documents falsely stating he was married; and forging his commander’s signature to a form to receive back BAS pay as of April 20, 1991. The offenses spanned the period from May 1 to October 7, 1991, the date appellant and Ms. Petrie entered into a formal marriage ceremony in Sumter, South Carolina. The charges were referred to trial on March 21, 1992.

Appellant retained a local civilian lawyer, Mr. John McMillian, to represent him on the criminal charges. Shortly thereafter, Mr. McMillian filed an action in South Carolina Family Court on behalf of Ms. Petrie asserting she and appellant were married under state common law in 1990. Appellant initially filed an answer to the proceeding representing himself but subsequently retained another local lawyer, Mr. Barry W. Streeter, to represent him.

On April 21, 1992, appellant and Ms. Petrie, along with their respective civilian attorneys, appeared in Family Court and persuaded the state judge to issue an order declaring [675]*675the couple validly married under state common law as of October 6,1990. With Family Court order in hand, Mr. McMillian represented appellant at the court-martial. Mr. McMillian argued that the Family Court order precluded conviction of any offense based on a false claim of marriage. Mr. McMillian also presented a few personal papers, like airline tickets and bills, where appellant and Ms. Petrie held themselves out as Mr. and Mrs. Riddle in August and September 1991.

The prosecutor countered that the common law marriage was a sham and presented evidence to prove so. In this regard, the prosecutor presented evidence that (1) Ms. Petrie didn’t even move to South Carolina until July 1991, (2) appellant lived in the base dormitory until then, (3) the formal marriage on October 7, 1991, didn’t take place until 5 days after Air Force investigators interviewed the couple about stealing pay entitlements and benefits through false claims of marriage, (4) both appellant and Ms. Petrie told investigators they were not married and appellant had altered a marriage certificate to falsely show they were married to receive more pay, (5) they referred to each other as “boyfriend”/“girlfriend” during the investigators’ interview, (6) Ms. Petrie told investigators appellant had “doctored up a BAS form” to receive “backpay,” (7) they didn’t file joint federal tax returns as a married couple for 1990 and 1991 until April 1992 when they filed amended returns for those years, and (8) on appellant’s original 1991 return, he filed as a “single” person.

The prosecutor also provided a verbatim transcript of the Family Court proceeding which showed that no one, including the attorneys, made the state judge aware of the pending court-martial or any of the above facts, particularly the altered Ohio marriage certificate. On the contrary, according to the transcript, appellant told the judge that he and Ms. Petrie “started living together in October of 1990 as husband and wife.” Mr. McMillian also told the Family Court judge that the couple filed joint federal and state tax returns for 1991 when in fact they filed an amended return shortly before the proceeding.

The military judge acquitted appellant of larceny and several specifications of signing false official documents. The military judge also acquitted appellant of conspiracy and the remaining specifications of signing false official documents, but convicted him of the lesser-included offense of attempting each of those offenses. Before announcing his verdict, the military judge sua sponte stated he considered the defense of mistake and gave full faith and credit to the Family Court order.

ATTEMPT VERSUS COMMON LAW MARRIAGE

An accused’s actual common law marriage, or honest belief that such a marriage exists, is a complete defense to a charge of stealing married rate pay entitlements, conspiring to do so, or signing official documents falsely stating a marriage exists. If the accused is in fact married, whether by official ceremony or common law, it is legally impossible for the accused to commit the offenses. In a similar vein, if the accused honestly believes a marriage exists, whether by official ceremony or common law, the accused lacks the specific intent or knowledge required for the offenses. United States v. Allen, 27 M.J. 234 (C.M.A.1988); United States v. Groves, 23 M.J. 374 (C.M.A 1987). We look first at the validity of the marriage.

In resolving the issue of an accused’s marital status, a court-martial must give full faith and credit to a state court order determining the marital status of one of its citizens. U.S. Const, art. IV, § 1; 28 U.S.C. § 1738; Allen 27 M.J. at 238-239. In this case, the military judge did so and acquitted appellant of numerous offenses. We likewise give full faith and credit to the South Carolina order even though it is clear to us that appellant’s common law marriage was a sham and he and his “wife” selectively presented the facts to the Family Court judge who did the best he could with what he had. In this regard, a court-martial is not the proper forum for a government attack on a state court domestic relations order. Compare Allen with United States v. Bolden, 28 M.J. 127 (C.M.A.1989) (upholding government attack [676]*676on sham marriage ceremony versus attack on state judicial proceeding).

However, even if it is factually or legally impossible for an accused to commit an offense under the circumstances as they actually exist, the accused may be convicted of an attempt to commit that offense, if he would be guilty of the completed crime had the circumstances been as he believed them to be. United States v. Thomas, 13 U.S.C.M.A. 278, 32 C.M.R. 278 (1962). For example, one who possesses sugar, believing it to be cocaine, is guilty of attempted possession of cocaine. United States v. Dominquez, 7 U.S.C.M.A. 485, 22 C.M.R. 275 (1957).

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Related

United States v. Riddle
44 M.J. 282 (Court of Appeals for the Armed Forces, 1996)
United States v. Baker
43 M.J. 736 (Air Force Court of Criminal Appeals, 1995)
United States v. Ruth
42 M.J. 730 (Army Court of Criminal Appeals, 1995)

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Bluebook (online)
41 M.J. 673, 1994 CCA LEXIS 78, 1994 WL 679907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-riddle-afcca-1994.