United States v. Smith

50 M.J. 380, 1999 CAAF LEXIS 731, 1999 WL 335710
CourtCourt of Appeals for the Armed Forces
DecidedMay 26, 1999
Docket98-0356/AR
StatusPublished
Cited by4 cases

This text of 50 M.J. 380 (United States v. Smith) 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. Smith, 50 M.J. 380, 1999 CAAF LEXIS 731, 1999 WL 335710 (Ark. 1999).

Opinions

Judge SULLIVAN

delivered the opinion of the Court:

During June of 1996, appellant was tried by a general court-martial composed of officer and enlisted members at Aberdeen Proving Ground in Maryland. In accordance with her pleas, she was found guilty of attempted larceny, conspiracy to commit larceny, and knowingly making a false statement, in violation of Articles 80, 81, 121, and 134, Uniform Code of Military Justice, 10 USC §§ 880, 881, 921, and 934, respectively. She was sentenced to a bad-conduct discharge, total forfeitures, and reduction to the grade of E-1. On September 10, 1996, the convening authority approved the sentence but suspended execution of one-third forfeiture of pay until appellant was placed on involuntary excess leave. The Court of Criminal Appeals, on November 19, 1997, affirmed the findings of guilty and so much of the sentence as provided for the punitive discharge, forfeiture of two-thirds pay per month until execution of the discharge, and the reduction to E-l.

On April 28, 1998, this Court granted review of the following question of law:

WHETHER APPELLANT’S PLEA TO ATTEMPTED LARCENY IS IMPROVIDENT BECAUSE THE PLEA WAS [381]*381BASED ON AN INADEQUATE FACTUAL PREDICATE IN THAT THE ACTS ADMITTED TO ARE INSUFFICIENT TO ESTABLISH MORE THAN MERE PREPARATION.

On September 30,1998, we granted review of the following supplemental issue:

WHETHER THE APPLICATION OF ARTICLE 57(a)(1), UCMJ, 10 USC § 857(a)(1), VIOLATES THE EX POST FACTO CLAUSE OF THE UNITED STATES CONSTITUTION WITH RESPECT TO APPELLANT.

In light of this Court’s decision in United States v. Schoof, 37 MJ 96, 103 (1993), we hold that appellant’s pleas of guilty to attempted larceny were provident. On the second issue, a majority of this Court has resolved it in appellant’s favor, but nonetheless affirms the decision of the appellate court below. See United States v. Gorski, 47 MJ 370, 375 (1997); cf. Id. at 376-77 (Sullivan, J., concurring in part and in the result).

A stipulation of fact was agreed to by appellant and admitted into evidence. It stated:

Specialist JUANA L. SMITH (SPC SMITH) is an Administrative Clerk for Headquarters and Headquarters Company, 16th Ordnance Battalion, 61st Ordnance Brigade, U.S. Army Ordnance Center and School, Aberdeen Proving Ground, Maryland (HHC 16th Ord Bn). In the course of her duties she is entrusted with the care and control of the personnel data cards for the Weapons Department of HHC 16th Ord Bn. These data cards contain confidential information about the soldiers in the Weapons Department of HHC 16th Ord Bn, including their Social Security numbers, birthdates, past units of assignment, and other related information. In early 1995, SPC SMITH overheard a conversation between her cousin NIKIA SMITH and NIKIA’S friend ANNETTE, about how to apply for credit cards from Central Fidelity Bank (CFB) in Richmond, Virginia, using fake names, and other people’s personal and job information. SPC SMITH devised a scheme to order credit cards from CFB using fake names and the personal and job information of other soldiers in HHC 16th Ord Bn which she could get from their personnel data cards. SPC SMITH was having financial problems, and planned to use the credit cards to make purchases for herself and her son.
During September 1995, MS. CARR, an acquaintance of SPC SMITH, told SPC SMITH’S friend, MICHELE D. MCNAIR (MICHELE), how she had obtained a credit card from CFB using a fake name and false information. SPC SMITH and MICHELE planned together to order a credit card from CFB using a fictitious name and the personal and job information of soldiers in the Weapons Department HHC 16th Ord Bn. It was the intention of SPC SMITH and MICHELE, upon receiving the credit card, to make purchases using the credit card, without ever paying CFB for the items charged to the account. A couple of weeks later, SPC SMITH went through the NCOER book of the Weapons Department of HHC 16th Ord Bn and selected the social security number of SSG KATHY SMITH (SSG SMITH). SPC SMITH decided to use SSG SMITH’S name because it was similar to her own. SPC SMITH got her cousin’s birthdate, a business address from a sign she saw at Aberdeen Proving Ground, and wrote all of this information down on an index card. SPC SMITH then gave the index card to her friend MICHELE, and told MICHELE to call CFB and apply for a credit card.
On 29 September 1995, MICHELE telephoned CFB from a pay phone at Aberdeen Proving Ground and applied for a Visa credit card. Later in the day, SPC SMITH called MICHELE to confirm that MICHELE had placed the credit card application.
On 6 October 1995, MICHELE called CFB to check on the status of their credit card application and spoke to RHONDA BLOUNT, who told her that the application looked promising. Later in the day, SSG SMITH received a phone call from RHONDA BLOUNT at CFB about the [382]*382credit card application that MICHELE had ordered under SSG SMITH’S name. SSG SMITH then told RHONDA BLOUNT that she had never ordered any credit card from CFB and canceled the application. Had SPC SMITH and MICHELE been successful in getting a credit card under SSG SMITH’S name, they would have made purchases using that credit card without ever paying CFB for the items charged to the account.

The military judge questioned appellant about her understanding of why she was guilty of the attempted larceny charge based on the above facts. The record states:

MJ: Okay. Let’s look at the first charge, which is the attempted larceny, and this one alleges that on or about 6 October 1995, you attempted to commit the offense of larceny, and what are the facts relating to this particular offense?
ACC: It’s — the—where—
MJ: Or is that the same thing we were just talking to — about the conspiracy?
ACC: Yes, sir.
MJ: Okay. I understand. So you and Michele entered into an agreement where she was going to call, and then in fact she did call?
ACC: Yes, sir.
MJ: And for some reason that you don’t know, the bank caught on?
ACC: Yes.
MJ: Okay, so, the charge is written in such a way it says that you did at or near Aberdeen Proving Ground. It appears to me that the theory that the Government is pursuing in this case is that you are responsible for the act of Michele in making this phone call because you were co-conspirators, and one co-conspirator is responsible for the acts of another co-conspirator if the act is committed during the course of the conspiracy and while you’re still a member of that conspiracy. Did you and your defense counsel talk about that?
ACC: Yes, sir.
MJ: Okay. And do you understand that? ACC: Yes, sir.
MJ: Okay. So then with regard to the attempt, what you’ve told me is that, as part of this conspiracy, Michele made a phone call to get the credit card, it was done with the specific intent to get the credit card, so that either you or Michele could purchase items with the credit card and not pay the bank back. Is that right? ACC: Yes, sir.
MJ:

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Bluebook (online)
50 M.J. 380, 1999 CAAF LEXIS 731, 1999 WL 335710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-smith-armfor-1999.