United States v. Roane

43 M.J. 93, 1995 CAAF LEXIS 121, 1995 WL 571814
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 28, 1995
DocketNo. 94-0212; CMR No. S28556
StatusPublished
Cited by35 cases

This text of 43 M.J. 93 (United States v. Roane) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Roane, 43 M.J. 93, 1995 CAAF LEXIS 121, 1995 WL 571814 (Ark. 1995).

Opinions

Opinion of the Court

WISS, Judge:

1. In May 1991, appellant was tried by a special court-martial military judge sitting alone at Bitburg Air Base, Federal Republic of Germany. Pursuant to his pleas, appellant was found guilty of unauthorized absence (3 specifications — 9, 3, and 2 days) and of wrongfully obtaining phone services, in violation of Articles 86 and 134, Uniform Code of Military Justice, 10 USC §§ 886 and 934, respectively. Appellant was sentenced to a bad-conduct discharge, as well as confinement and forfeiture of $250.00 pay per month for 3 months. The convening authority approved the sentence. The Court of Military Review1 affirmed these results in an unpublished opinion.

2. This Court granted review on the two issues2 that appellant presented but combined them into the following issue:

WHETHER APPELLANT’S PLEA WAS PROVIDENT SINCE THE MILITARY JUDGE DID NOT SUFFICIENTLY INQUIRE AS TO APPELLANT’S INTENT AFTER APPELLANT MADE STATEMENTS WHICH WERE INCONSISTENT WITH GUILT AND APPELLANT’S INTENT AT THE TIME OF THE OBTAINING WAS NOT ESTABLISHED.

3. We hold that the military judge did not abuse his discretion by accepting appellant’s guilty pleas to wrongful taking by false pretenses, as the military judge in the providence inquiry properly elicited facts to estab[95]*95lish appellant’s intent to defraud at the time he used his roommate’s telephone account without prior authorization. Appellant’s statements during the providence inquiry that he kept a record of his unauthorized telephone calls and that he intended to reimburse his roommate for the calls when he had the money did not reasonably raise a defense, and neither of these matters was inconsistent with his pleas of guilty.

I

4. The present issue relates to Charge II and its single specification alleging that appellant used false pretenses in obtaining telephone services. Simply stated, appellant used his absent roommate’s telephone account without authority.

5. Airman First Class (A1C) Kenneth Wright occupied a dormitory room at Bit-burg Air Base. He arranged with the Deutsches Bundespost for a telephone connection in this room and a personal telephone account. On January 21, 1991, the day of his deployment for several weeks, he secured his telephone in his individual locker, but he did not terminate the room’s telephone connection or his account. Thus, it was possible for anyone merely to plug another telephone into the active connection and to charge calls to Wright’s account.

6. Four days later, appellant moved into this dormitory room, and he knew that Wright was his absent roommate. In an attempt to obtain telephone service, appellant went to the Deutsches Bundespost where he was told there was already a telephone connection in the room. While the record does not expressly address whether appellant attempted to obtain another connection in the room for himself, it is unequivocally clear that he knew that the existing telephone connection and account were exclusively in the name of A1C Wright and that appellant desired to avoid paying connecting fees to obtain his own account.

7. Appellant then made his serious mistake. Without the permission of the Deutsches Bundespost, his roommate, or any other authority, he plugged his own German telephone into the telephone connection issued to Wright, thereby accessing Wright’s account. Thereafter, he began to make telephone calls, including several long-distance calls to the United States. Appellant knew that all his calls would be charged to Wright’s account.

8. On March 19, 1991, A1C Wright returned from his deployment; and on April 23,1991, he received his March telephone bill of DM 875.19 that covered the period in which he continuously was deployed. Although appellant previously had told Wright (at a time not disclosed in the record) that he “had used the phone,” appellant had not disclosed the extent of his usage of Wright’s account. When Wright examined the bill, he thought it was “too high” and confronted appellant, who again “admitted” billing his personal calls to Wright’s telephone account and for the first time promised to repay him. Appellant failed to pay for his unauthorized telephone calls, however, and was charged later with and pleaded guilty to wrongfully obtaining telephones services under false pretenses.

9. At the court-martial, appellant’s initial disclosures during the providence inquiry corroborated his guilty pleas. He admitted that he had “intended to defraud the telephone company” and A1C Wright and that he knew that using his roommate’s telephone line was “wrong” and criminal. Appellant also told the military judge that, when Wright confronted him about the excessive telephone charges, he promised to reimburse Wright when he had the money. As of the time of trial, however, appellant had failed to pay Wright for the unauthorized telephone calls.

10. The present legal issue arises from appellant’s statements during the providence inquiry that he had kept a log of his telephone calls and that he had intended to reimburse Wright for them when he had the money. Appellant claims these revelations were inconsistent with his pleas of guilty to wrongfully obtaining services under false pretenses, as they establish that he had no criminal intent to defraud. Appellant concludes that, since the military judge failed to resolve this alleged inconsistency, his pleas [96]*96were improvident. The Government, of course, disagrees.

11. The following is the relevant portion of the providence inquiry:

Q: Basically tell me how you got into the telephone service.
A I went to the Bundespost to try to get a line put in and they told me that there was already one in that room.
Q: You told me that you were roommates with A1C Wright, you didn’t know that already?
A I moved after he already left to Turkey.
Q: So at this time A1C Wright was not your roommate initially?
A No, Sir.
Q: Did you even know who he was?
A Yes, Sir.
Q: So you got a line already in the room. What did you do?
A: So I had used my phone to make telephone calls. I kept count of how much my total was on the telephone, how many clicks I used.
Q: In other words, you plugged your phone into his jack, his wire?
A Yes.
Q: And you know basically how that works? They tab up to whoever is supposed to be the guy that owns the wire.
A Yes, Sir.
Q: So you are getting all these phone calls and they are clicking up to his account. Right?
A Yes, Sir.
Q: Where were you calling?
A To the States, Sir.
Q: Do you have any idea about how many times you called?
A Not offhand, Sir, no.
Q: More than ten?
A Not that many times.
Q: Somewhere between five and ten?

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Cite This Page — Counsel Stack

Bluebook (online)
43 M.J. 93, 1995 CAAF LEXIS 121, 1995 WL 571814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-roane-armfor-1995.