United States v. Stroup

24 M.J. 760
CourtU S Air Force Court of Military Review
DecidedJune 2, 1987
DocketACM 24916
StatusPublished
Cited by3 cases

This text of 24 M.J. 760 (United States v. Stroup) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review 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, 24 M.J. 760 (usafctmilrev 1987).

Opinion

DECISION

MURDOCK, Judge:

After a long and tumultuous trial, a general court-martial, with officer members, convicted the appellant of conspiring to steal more than one million dollars of United States’ funds, stealing seven United States Treasury checks, and uttering, with intent to defraud, a falsely made check in the amount of $945,670. He was sentenced to dismissal, total forfeitures, and confinement for three years.

The charges stem from the appellant’s assignment as an accounting and finance officer at RAF Mildenhall, England. One of his duties as the deputy accounting and finance officer in charge of paying and collecting was to sign government checks. To facilitate this duty a die had been made of his signature which could be used to sign checks. Although the machine did not work properly during most of his assignment, the die fit into an automatic check signing machine, and checks could be signed by manually operating the machine. Apparently because the blank checks and the signature dies were stored in his area and because he was an authorized check signer, the original conspirators decided to include the appellant in their scheme to steal government checks and cash them for about one million dollars apiece.

Through a series of misadventures, the scheme began to unravel and the primary thieves were identified. The appellant’s involvement came to light during questioning of these thieves. One of the thieves was an Air Force master sergeant who worked in accounting and finance. The other was a former U.S. Air Force airman who had left the service and settled in England.

The appellant has asserted eleven errors. Although we do not find merit in any of them, several deserve special consideration here.

I.

Evidence Concerning the Appellant's Father

The appellant asserts that the military judge erred by overruling various defense objections and motions in limine protesting the trial counsel’s interjection of information concerning the appellant’s father into the trial. We find that no error was committed.

Sometime during the appellant’s teens, his father moved from the family home in Ohio and resettled in the Cayman Islands where he became an investment counsellor. At about the same time that the appellant’s court-martial was nearing trial, the father was arrested and placed in pretrial confinement at a federal prison in Florida.

The appellant testified in his own defense. During an Article 39(a), U.C.M.J., session the trial counsel asked several questions about the extent of the appellant’s knowledge about his father’s situation. In particular, he asked if the appellant had ever said that his father was a crook or ever said that his father was engaged in illegal activities. Later he asked the appellant when he had learned about his father being in jail. The appellant’s responses varied from an initial statement that he had just heard about it, to an eventual admission that he had known his father was in jail almost from the time he entered the jail.

From this point the trial counsel launched into extensive questioning of the appellant and other witnesses about the appellant’s father. He tried to establish that the appellant had described his father as a “crook”, and that the father was deeply involved in shady financial dealings.

[763]*763It is apparent to us that the trial counsel was delighted that the appellant had a father with personal business activities that could be made the object of innuendo so easily. Many people are inherently suspicious of the mysterious activities of the wealthy and their advisors. When these activities involve an American expatriate dealing from an exotic Caribbean island it is tempting to assume that something illegal is taking place. Many prosecutors would love to be able to associate a person who is charged with money crimes with the shadowy activities of international finance. Although the trial counsel tried diligently to find some connection between the appellant’s father and the theft involved in this case, he was not able to do it.

Because the government did not prove a connection existed between his father and the charged crime, the appellant now complains that all mention of his father was irrelevant and objectionable. He might be correct if he had been forthright with his testimony, or had refused to testify at all. If his responses had all been consistent there would have been no point in pursuing the inquiry about the father’s status. As it was, the overall tenor of the appellant's testimony was wary, sparring, and argumentative. Statements which began as flat denials often became partial admissions under cross-examination. This turned a simple area of inquiry into a very fertile ground for testing the appellant’s credibility.

When an accused chooses to testify he becomes a sworn witness. As such, his credibility is at issue. Mil.R.Evid. 608(a) and (b). This is particularly important in a case such as this where there is no direct evidence of the appellant’s involvement other than the statements of other participants. In our view, because of the appellant’s shifting answers about his knowledge of his father’s activities, it was proper to question him further to evaluate his credibility. The military judge did not err by overruling objections to it.

II.

Admissibility of Statements

In several related assertions of error, the appellant complains that statements made by one of the primary thieves were erroneously admitted. These errors concern two categories of statements.

The first category concerns testimony of a staff sergeant from the finance office in which he related conversations he had with the primary thief. This sergeant found himself between the interests of the Office of Special Investigations (AFOSI) and the primary thief. The AFOSI wanted him to serve as a source of information about the theft but he refused. Instead, he continued to meet with the primary thief and pass information along about the status of the investigation.

To be considered statements of a co-conspirator, statements must have been made during the course of and in furtherance of a conspiracy. Mil.R.Evid. 801(d)(2)(E). The conspiracy in this case was to steal government checks, negotiate them, and share the proceeds. The statements made to the sergeant were all made before the object of the conspiracy was complete. Most of the checks had not yet been negotiated. In fact, a number of the thief s discussions with the sergeant were about why the initial check had been detected and how future checks should be completed to avoid detection. The thief asked the sergeant to go to Greece and talk with the appellant. Because he considered that the point of the trip to Greece would be to blackmail the appellant, the sergeant refused. The thief also asked the sergeant whether he could get him a current signature die and another government check. The nature of these conversations convinces us that the conspiracy was still active and the statements were made in furtherance of it. The thief’s statements, related by the sergeant, were properly admitted as statements of a co-conspirator. MiLR.Evid. 801(d)(2)(E).

The other category of statement refers to the contents of a tape recording of a [764]*764conversation between one of the primary thieves (the same thief as was involved in the other category) and a third party. The conversation recorded on this tape, while referring to the theft, does not appear to be in furtherance of the conspiracy.

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Related

United States v. Williams
35 M.J. 812 (U S Air Force Court of Military Review, 1992)
United States v. Stroup
29 M.J. 224 (United States Court of Military Appeals, 1989)
United States v. Dowlat
28 M.J. 958 (U S Air Force Court of Military Review, 1989)

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Bluebook (online)
24 M.J. 760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stroup-usafctmilrev-1987.