United States v. Stroup

29 M.J. 224, 1989 CMA LEXIS 3576, 1989 WL 111600
CourtUnited States Court of Military Appeals
DecidedSeptember 29, 1989
DocketNo. 58,539; ACM 24916
StatusPublished
Cited by10 cases

This text of 29 M.J. 224 (United States v. Stroup) 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. Stroup, 29 M.J. 224, 1989 CMA LEXIS 3576, 1989 WL 111600 (cma 1989).

Opinion

Opinion of the Court

COX, Judge:

In June and July of 1984, a general court-martial with members, sitting at Royal Air Force (RAF) Mildenhall, United Kingdom, convicted appellant, contrary to his pleas, of conspiring to steal in excess of $1,000,000; larceny of United States Treasury checks; and uttering a check falsely made in the amount of $945,670, in violation of Articles 81, 121, and 123, Uniform Code of Military Justice, 10 USC §§ 881, 921, and 923, respectively. He was sentenced to dismissal, confinement for 3 years, and total forfeitures. Except for a brief deferral of confinement, the convening authority approved the sentence. The Court of Military Review affirmed. 24 MJ 760 (1987).

We granted review of seven issues. As we hold in favor of appellant on the first three issues, it is unhecessary for us to reach those remaining.1

To better understand the issues, it will be helpful to know the manner in which the offenses underlying the charges came to light. On May 19, 1982, a man identifying himself as “Mark McCleod” established a corporation on the Isle of Man called Venue Enterprises Limited. The corporation opened an account with the Investment Bank of Ireland and deposited into it a U.S. Treasury check in the amount of $945,670, payable to the corporation.

A few days later, on May 24, U.S. finance officials at RAF Lakenheath, the alleged source of the check, were contacted by the bank to verify the check. It was immediately recognized that the check was a forgery because the serial number of the check was way out of sequence. That check would not have been issued for many months. Subsequent inventories established that some 40 checks were missing from their sealed storage containers.

When “McCleod” returned to the bank on June 1 and attempted to withdraw over $300,000 worth of U.S. and British currency, he was arrested. He turned out to be Martin J. Edwards. The U.S. Treasury check that had been deposited bore the fingerprint of Phillip Law. Law was retired from the U.S. Air Force, lived in England, and was in business there. Before his retirement from the Air Force, he worked at the RAF Lakenheath finance office where the Treasury check should have been stored. Law exercised his rights against self-incrimination under British and American law and refused to testify in appellant’s trial. See granted issue IV, set out in n. 1, supra.

[226]*226As soon as it was determined that the check was false and that others were missing, authorities from both the United States and Great Britain began investigating the case. All persons having recent connections with the finance office were interviewed. At the time of the discovery, appellant was stationed in Greece. However, he had been assigned to the RAF Lakenheath office between late October 1981 and April 1982. He was interviewed by agents of the Office of Special Investigations (OSI) on May 27, 1982, and he submitted to a series of polygraph examinations. In the opinion of OSI experts, these polygraphs indicated deception. Nonetheless, appellant admitted no guilt, and there was no hard evidence pointing to him. With respect to appellant at least, the investigation had reached an apparent dead end.

Another person assigned to the finance office was Master Sergeant Harold W. Walls. Initially, MSgt Walls denied any knowledge or involvement in the instant offenses. By June 1982, however, he was already under investigation by U.S. Secret Service agents for his role in passing or attempting to pass approximately $80,000 in counterfeit U.S. currency. With respect to that offense, he exercised his right to counsel and volunteered no information to the Secret Service. By April 1983, Walls’ military counsel commenced negotiations with the Government. The offer was that Walls could implicate a captain in the RAF Lakenheath check offense, and Walls would cooperate in the prosecution. In exchange for this, Walls was to get complete immunity for his role in the check scheme and a Secret Service recommendation for a suspended sentence in the counterfeiting scheme.

In September 1983, the deal between Walls and the Government was struck. Walls related to the authorities that he and Law had for some time been trying to devise a scheme to acquire blank government checks for the purpose of forging and negotiating them. In due course, according to Walls, they approached appellant. He was needed because he had access to the blank checks and the signature dies— the stamps used to print the appropriate official’s signature on the checks. According to Walls, appellant’s only role was to lend his keys to Walls and Law. They then were to enter the office after hours, and steal and stamp the checks. Law was to be in charge of negotiating the checks; each of the participants was to receive $1,000,-000. Allegedly, appellant agreed and turned over the keys in early October 1981.2

Walls testified substantially to the same effect in appellant’s court-martial. He added that, during the discussions between himself, Law, and appellant, the latter suggested that the checks be processed through the Cayman Islands. According to Walls, appellant

seemed very interested in getting the money into the Cayman Islands. He had some contacts in the Cayman Islands or — I was told his father lives in the Cayman Islands.

By the time of appellant’s trial, Walls had already pleaded guilty in United States District Court for his role in the counterfeit currency scheme, and he had already received a suspended sentence pursuant to Secret Service recommendation. Other than the circumstance that for sometime appellant had access to the signature dies and the missing checks, Walls’ testimony is the only significant, affirmative evidence against appellant.

The first granted issue we take up is issue II. It asks: WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE ACCUSED BY ADMITTING OYER DE[227]*227FENSE OBJECTION THE TESTIMONY OF SSGT TURKE AS TO STATEMENTS MADE BY PHILLIP LAW TO SSGT TURKE UNDER THE THEORY THAT THEY SATISFIED THE REQUIREMENTS FOR “STATEMENTS OF A CO-CONSPIRATOR” OR “STATEMENTS AGAINST INTEREST.”

Staff Sergeant Turke testified as a prosecution witness that he also worked in the finance office at RAF Lakenheath, but he had no initial involvement with the theft of checks. Over a period of several months, commencing approximately a year after Walls claimed the theft occurred and several months after the thwarted withdrawal attempt, SSgt Turke had a series of conversations with Law about the incident. In the course of these conversations, Law allegedly admitted his own involvement in the scheme to Turke, along with that of Walls and appellant. Law wanted Turke to go to Greece to try to collect $30,000 from appellant, allegedly to pay for the expenses of the fiasco. Turke took it as a solicitation for blackmail and refused. Law also pressed Turke to help him get another blank check and for information as to how he could negotiate the checks still in his possession.

All of these assertions were admitted by the judge as statements of a co-conspirator made during the course of and in furtherance of a conspiracy. Mil.R.Evid. 801(d)(2)(E), Manual for Courts-Martial, United States, 1969 (Revised edition). That rule provides:

A statement is not hearsay if:

* * * * * *
The statement is offered against a party and is ...

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Cite This Page — Counsel Stack

Bluebook (online)
29 M.J. 224, 1989 CMA LEXIS 3576, 1989 WL 111600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stroup-cma-1989.