United States v. Ward

14 C.M.A. 3, 14 USCMA 3, 33 C.M.R. 215, 1963 CMA LEXIS 250, 1963 WL 4841

• Court: United States Court of Military Appeals
• Decided: May 10, 1963
• Docket: No. 16,315
• Status: Published

Opinions

Opinion of the Court

Kilday, Judge:

I

Arraigned before a general court-martial, accused pleaded not guilty to two specifications involving the making and use of false papers in support of claims against the United States, violative of Article 132, Uniform Code of Military Justice, 10 USC § 932. Upon consideration of the evidence, the court convicted him as charged, and imposed a sentence of bad-conduct discharge, total forfeitures, confinement at hard labor for two years, and reduction in grade. The findings and sentence have been affirmed upon review at intermediate levels, except that the board of review reduced the period of confinement to one year.¹

Thereafter, this Court granted accused’s petition for review in order to consider three issues. The first two deal with an alleged violation of Article 31, Uniform Code of Military Justice, 10 USC § 831; the remaining question concerns the sufficiency of the evidence. The issues will be set out in the course of our discussion. Before launching into those inquiries, however, a rather extensive development of the facts is deemed appropriate to a proper understanding of the questions.

II

Both offenses arise out of accused’s claim for parachute jump pay. He was stationed at Fort Bragg, North Carolina, but, from June through August 26, 1961, he was on temporary duty at Fort McClellan, Alabama. He needed a parachute jump in order to qualify for extra pay for the period August,' September, and October, but the facts indicate he was unable to arrange one. Accused did, however, prepare a false jump manifest, a DA Form 1308, reflecting that he and two other soldiers had jumped at Fort Benning, Georgia,on August 7, 1961. The record specifically reflects that such jump was not made. Accused, however, received $55.00 per month jump pay for August, September, and October 1961, based on the alleged parachute jump of August 7th. The circumstances under which, on November 15, 1961, accused submitted a manifest concerning this jump to a finance clerk will be set forth separately, later in this opinion. We note at this point that, according to the evidence, about five weeks later, shortly before Christmas, accused'contacted one of the soldiers listed on the August 7th manifest regarding the incident. Accused at that time advised him to “forget it,” and not say anything if questioned about “The deal at Fort McClellan.”

After his return from Fort McClellan, and during late October or about November 1, 1961, accused approached another soldier, one Mills. The latter replied in the affirmative when accused asked if he needed a jump for pay purposes. Subsequently, at accused’s instruction, this soldier went to accused’s car, from which he obtained two jump manifests. It would appear they were partially filled in, and Mills testified accused added his name to accused’s own, which was already listed thereon. He further stated he noticed that the purported certifying signature of a Captain Sharp had been affixed as jumpmaster. Thus completed, the manifest indicated the pair had made a parachute jump at Fort Bragg on November 1, 1961. When Mills later asked when the jump was to be made, accused told him to “forget it.” The record shows this jump was not made, and Sharp denied signing such a manifest or authorizing his signature, or jumping or acting as jumpmaster on that date. Accused turned in to finance one of the manifests above described and thereafter received extra pay for November based on this alleged jump. The evidence also shows that, around the middle of December, accused contacted finance and inquired as to possibly returning the money he had been paid for this alleged jump, and whether “there was any way” the clerk could “not post the jump for December.”

One Stubli, the finance clerk for accused’s unit, testified that jump manifests are to be certified after the parachute jumps are completed. Those documents show the date, place, and nature of the jumps, and list the persons making the same. Such manifests are used, for finance purposes, to credit enlisted personnel for the $55.00 monthly extra pay to which the jump entitles them during the quarterly period covered. In order for finance to post jump pay on a man’s pay record, either such a jump manifest or the soldier’s individual jump log is required.

The specifications upon which accused stands convicted aver that he filed the manifest as to the purported November jump on November 5, 1961; and that the manifest regarding the earlier jump, allegedly made in August, was submitted on November 15, 1961. The circumstances of the latter transaction are important to the issues before us.

For some reason, accused’s pay records had apparently been screened by criminal investigators “The first part of November.” They apprised the pay clerk, Stubli, and his superior, that the manifest indicating accused jumped on August 7th, which supported the extra pay for August, September, and October, was missing. Thereupon the clerk was called in by his superior, and the pair went through accused’s file. They verified that, although an August 7th jump had been posted on accused’s pay record, the supporting manifest indeed was not there, as it should have been. Stubli desired a copy of the manifest so as to substantiate the accused’s records for pay purposes. Therefore, he obtained his superior’s permission to contact accused and find out whether the latter had a copy of the manifest for use in the records. The pay clerk did so and, on November 15th, accused brought in a copy of the August 7th document. Stubli pointed out that it was unsigned by the jump-master or other certifying officer and that, absent the required certification by one of those individuals, he could not accept the manifest. Accused thereupon signed the document, which already bore his typed name as jump-master, and turned it over to the finance clerk.

It was elicited from Stubli that he at no time warned accused in accordance with Article 31 of the Code, supra. Further, the clerk admitted that, at the time he requested and secured the jump manifest from accused, both he and his superior suspected accused of “committing an offense.” At no time, however, was the nature of this “suspicion” ever pinpointed and, when asked, Stubli specifically and categorically denied that he suspected accused of submitting a false claim or manifest on the alleged August 7th jump.

The clerk denied acting as an agent of criminal investigators, or at their behest; that his action in contacting accused was at his superior’s direction; or that he was investigating or seeking evidence. To the contrary, he stated that jump manifests are required by regulations. The August 7th manifest was missing; he didn’t know where it was, and needed the document for the pay records to substantiate them and bring them up to date. It was “standard procedure” to contact the individuals when documents were missing, and Stubli had done this on several prior occasions, strictly for pay purposes. He needed it for proper posting of accused’s records. Had the latter not had a copy, the ordinary course would be for Stubli to contact the post where the jump was allegedly made for verification.

With regard to this matter, the finance clerk remembered that, when accused returned to Fort Bragg from temporary duty around September 1st, the purported jump of August 7th was postéd on the fifth, or “working,” copy of accused’s pay record, which ae-cused had hand carried. It was already posted and, in order to do that, a jump manifest or other record is required. Thus, when Stubli later noted that the August 7th manifest was missing, he assumed someone had posted accused’s pay record and the supporting manifest was lost or misplaced. He did not know who posted it but, to the best of his knowledge, such posting was correct.

When the prosecution offered the August 7th manifest in evidence as an exhibit, accused’s individual military defense counsel interposed an objection. The defense argued that “It is in violation of Article 31 on self-incrimination” and that, in view of Stubli’s suspicions, “this was just a scheme to trap Ward to produce this document.” The law officer overruled the objection and received the manifest in evidence. Subsequently, when instructing the court members on the merits, he did not submit any Article 31 question to them.

Ill

The first two assignments of error upon which this Court granted review may conveniently be treated together. They inquire:

Whether accused was prejudiced by introduction of evidence taken in violation of Article 31; and,

Whether the law officer erred by failing to submit the Article 31 problem to the court for factual determination.

Patently, the first issue must be decided adversely to accused. The question posed concerns a simple interlocutory ruling, and it is clear from the facts recited that the law officer did not abuse his discretion in admitting the August 7th manifest in evidence.

The instructional issue is more difficult of resolution. It involves Stubli’s “suspicions,” and it is true the law officer did not instruct the triers of fact as to Article 31. Were such issue present in the case, there can be no doubt he would be obliged to give advice thereon to the court members in order that they might consider the question in their deliberations. United States v Gorko, 12 USCMA 624, 31 CMR 210. The law officer’s failure to do so,, however, is not at all the crux of the matter, for we must determine whether the evidence reasonably raised any such “Article 31 problem” — a matter, we note, that the defense presupposes in this assignment.

As we have earlier seen, Stubli and his superior, the finance officer, indeed suspected accused of “committing an offense”; and Stubli thereafter- contacted accused to obtain a copy of the missing manifest. While the specific nature of his suspicion was not elicited from the pay clerk, that is of no consequence. It is unimportant whether it was entitlement to extra compensation under the other manifest covering the November-January period, which accused had previously filed, or some other aspect of accused’s pay record that had been questioned. We may assume, arguendo, for the purpose of this case, that accused was indeed suspected of some pay irregularity as to the alleged August 7th jump.

Even so, the specification with which we are here concerned alleges — and the proof corresponds — - that accused submitted the false document to Stubli and thereby committed the offense after his conversation with the clerk. Obviously, at the time Stubli contacted accused the finance clerk and his suT perior officer could not have suspected accused of the November 15th offense;' which had not as yet been committed. Neither, certainly, under those circumstances, was it possible for them' to inform accused of the nature of such accusation. See United States v Nitschke, 12 USCMA 489, 31 CMR 75; United States v Haskins, 11 USCMA 365, 29 CMR 181; United States v Davis, 8 USCMA 196, 24 CMR 6; United States v O’Brien, 3 USCMA 325, 12 CMR 81. Nor could they have advised him that he did not have to' make any statement regarding an offense of which he was accused or suspected, not then being accused or suspected, Manifestly, the case at bar is to be distinguished from such cases as United States v Gorko, supra; United States v Souder, 11 USCMA 59, 28 CMR 283; United States v Doyle, 9 USCMA 302, 26 CMR 82; and United States v Nowling, 9 USCMA 100, 25 CMR 362. Unlike the present instance, in those cases the issue was as to suspicion attached regarding offenses already committed at the time inquiry was made of the accused. That is not so here.

If anything, the real issue raised in this case by Stubli’s testimony was one of entrapment. Thus, as indicated earlier herein, the defense itself urged to the law officer that this was “a scheme to trap Ward to produce this document.” So, too, in his closing argument to the court members on the merits, defense counsel asserted that Stubli entrapped accused, and urged that defense in behalf of his client. It is to be noted that such action was wholly consistent with what had taken place prior to summations in an out-of-court hearing on instructions. Thereat, the law officer had indicated the facts seemed to raise an issue of entrapment. Over the prosecution’s objection, and with the individual defense counsel’s acquiescence, the law officer stated he would instruct thereon. The defense indicated its agreement with that action and, after the law officer had given his instructions to the triers of fact in open court— including advice on entrapment but not Article 31 — the defense stated its satisfaction with the instructions and requested no others.

There can be no doubt, therefore, that the only issue which may have been reasonably raised by Stubli’s testimony was submitted to the court for its determination. The law officer’s advice properly submitted the theory of the case from the standpoint of the defense and adequately protected all the rights of the accused.

For these reasons, the second assigned error is rejected.

IV

The final issue upon which we elected to hear arguments requires determination of:

Whether the evidence is sufficient to show that the accused made and used a paper to obtain approval, allowance, or payment of a claim when such paper was made and used on November 15, 1961, to cover payments previously received by this accused in August, September, and October 1961.

The specification as to which this question relates alleges that, on November 15, 1961, accused made and used the false August 7th jump manifest “for the purpose of obtaining the approval, allowance, and payment of a claim against the United States in the amount of $165.” As we have previously noted, accused had, at the time of this offense, already received $55.00 per month extra pay for August, September, and October, based on the alleged August 7th parachute jump.

In short, the argument urged upon us by appellate defense counsel is that approval, allowance, and payment of this claim had taken place prior to the time accused presented the false manifest on November 15th. Thus, they contend that he could not, on the subsequent occasion, have submitted the manifest “for the purpose of approval, allowance, and payment” and, while his actions may have violated Article 107, Uniform Code of Military Justice, 10 USC § 907, accused certainly did not commit the Article 132 offense alleged in the specification.

In response, the Government urges that, until verification of the purported parachute jump of August 7th was properly filed, no obligation or debt accrued against the United States; the mere transfer of money does not constitute “payment” in the absence of a valid obligation and, therefore, no “payment” of this premium to accused had been made. Rather, he merely received an erroneous overpay, and the Government would, absent submission of the proper documents for “approval, allowance, and payment” of such a claim, recoup the amount from accused. Had the manifest not been filed to substantiate the jump, final confirmation of the extra pay would be disallowed, and recoupment would follow.

We may appropriately forego explicit consideration of the impact of 5 USC § 46d; 10 USC § 4837; or other statutes and finance regulations. See, for example, 5 USC § 46e; and Army Regulations 37-104, Chapter 13. Pre-termitting those questions, Article 132 (2) (A), Uniform Code of Military Justice, supra, upon which this prosecution was based, outlaws deliberate making or use of false documents “for the purpose of obtaining the approval, allowance, or payment” of a claim (emphasis supplied). The statutory proscription is in the disjunctive, and the offense is equally made out whether the purpose of the perpetrator be to obtain approval, allowance, or payment of a claim, or all three.

It is abundantly clear from the facts recounted hereinbefore that, regardless of whether accused’s receipt of $55.00 per month in August, September, and October constituted technical “payment” within the terms of Article 132, a properly filed jump manifest was required to perfect this extra entitlement. Absent such verification of the jump, the finance records were unsubstantiated and incomplete. The incentive payment clearly would be disapproved without the manifest, and the facts of the present case support a finding that accused submitted the same to prevent its disallowance.

The specification involved, the law officer’s instructions, and the findings returned by the court members, all contained approval, allowance, and payment, in the conjunctive. Clearly, therefore, the court-martial expressly concluded accused made and used the false manifest, on November 15, 1961, for the purpose of approval and allowance of the $165.00 claim, and the finding of “payment” is surplusage to a valid conviction for fraud against the Government.

The final issue, therefore, must be resolved adversely to accused.

The decision of the board of review is affirmed.

Chief Judge Quinn concurs.

1 By subsequent action, the Secretary of the Army ordered accused’s assignment to a retraining program. It was directed that, effective upon successful completion of a required period of training, the unexecuted portion of accused’s sentence be suspended and that he be restored to duty to complete his term of service under his current enlistment.