United States v. Webb

United States Court of Military Appeals

United States v. Webb

10 C.M.A. 422, 10 USCMA 422, 27 C.M.R. 496, 1959 CMA LEXIS 297, 1959 WL 3656

CourtUnited States Court of Military Appeals

DecidedMay 15, 1959

DocketNo. 12,515

StatusPublished

Cited by12 cases

This text of 10 C.M.A. 422 (United States v. Webb) 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. Webb, 10 C.M.A. 422, 10 USCMA 422, 27 C.M.R. 496, 1959 CMA LEXIS 297, 1959 WL 3656 (cma 1959).

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Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

The accused stands convicted of one specification alleging the wrongful and dishonorable failure to pay a debt due to the American Embassy Club, Seoul, Korea (Charge I, specification 2), and one charge of dishonorable failure to maintain a sufficient bank balance to pay a $20.00 check drawn by the accused and issued to the Palace Cafe, Santa Ana, California (Charge I, specification 6), in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. The sentence includes a bad-conduct discharge (suspended) and six months confinement at hard labor. On this appeal the validity of the con-yiction is challenged on two grounds.

[424]*424First, the accused contends that evidence relating to the charges against him was obtained as a result of an illegal search and seizure. The accused was brought to trial on six charges. At trial, defense counsel objected to the admission of certain evidence relating to specifications 3, 4, and 5 on the ground that the evidence was obtained as a result of unlawful search and seizure, and, alternatively, that the articles seized were merely evidence, not instruments, of the crime charged and were not, therefore, subject to seizure. See Boyd v United States, 116 US 616, 16 S Ct 524, 29 L ed 746; United States v Rhodes, 3 USCMA 73, 11 CMR 73.¹ The objection was overruled by the law officer. On appeal, the ruling was reversed by the board of review. The board of review dismissed specifications 4 and 5 on the ground that the papers belonging to the accused, which were seized by agents of the Criminal Investigations Detachment, were not the fruits or instru-mentalities of crime but consisted merely of evidentiary matter not capable of being legally seized.²

Neither the objection at the trial, nor the defense brief before the board of review, mentions the two specifications which are still outstanding. Ordinarily, the failure to ob-ject to the admission of evidence obtained as a result of search and seizure precludes the accused from asserting on appeal that the search and seizure were illegal. United States v Fisher, 4 USCMA 152, 15 CMR 152. The reason for the rule is that if objection is made at the trial evidence might be presented by the prosecution to show that in fact the search and seizure were legal. See United States v Dupree, 1 USCMA 665, 5 CMR 93. Appellate defense counsel, however, contends that the waiver rule is inapplicable here because there is “ample evidence” of the surrounding circumstances upon which the court can “reach a considered decision,” and that it would be a miscarriage of justice to disregard the plain error present in the case. The record of trial does not support these broad assertions.

According to the evidence, there were three separate searches of the personal effects of the accused. The first search was of a brief case taken from the accused’s car by a female civilian who appeared at the Criminal Investigations Detachment office to file a complaint of assault and battery against the accused. The second search was of several boxes belonging to the accused which he had left in the garage of the complainant. These were obtained with the consent of the owner of the premises. She told the agents she did not want the articles and she “didn’t want anything more to do with” the accused. The boxes were brought back to the Criminal Investigations Detachment office and placed in the evidence locker. The next morning the agents “got permission to search and . . . [they] went through it.” Permission was also obtained from the accused’s commanding officer to search the accused’s effects in his barracks. In the course of “one of . . . [the] searches” the agents found “a letter from the Embassy Club, the Embassy in Korea, for quite a bit of money.” They also found “a letter stating that he [the accused had] agreed to pay a certain amount of money.”

Considering the care with which defense counsel framed his objection and his express limitation of the objection to the evi-dence offered in support of specifications 3, 4, and 5, it is difficult to escape the conclusion that defense counsel believed there was no valid ground for exclusion of the evidence now challenged as inadmissible. Had there been an objection, the prosecution could have developed further the factual basis for the authority to make the second and third searches. Under the circumstances, the accused waived his right to object to the search and seizure on the ground of lack of authority. As for the alternate ground that the matter seized was evidentiary, [425]*425suffice ifc to say that the written acknowledgment of the obligation to pay the Embassy Club and the cancelled check were part of the offenses charged, not merely evidence thereof. United States v Marrelli, 4 USCMA 276, 15 CMR 276.

As his second assignment of error, the accused maintains that the debt of $2062.26 due to the American Embassy Club³ is in fact a disputed claim which cannot be the basis of a charge of dishonorable nonpayment. See Manual for Courts-Martial, United States, 1951, paragraph 2136. The argument is founded upon the following cross-examination testimony by the accused:

“Q. [TC] Sergeant WEBB, are you familiar with Prosecution Exhibit 1, the acknowledgement of your debt. Would you like to see it?

“A. Yes, sir, I would.

“The trial counsel handed Prosecution Exhibit 1 to the witness.

“Q. That is your signature on it, is it not?

“A. Yes, sir, that is correct.

“Q. You’ve heard in deposition testimony that you signed this voluntarily and of your own free will, is that correct?

“A. That is correct.

“Q. Then you dispute the justness of this debt?

“A. Might I ask . . .

“Q. Answer my question yes or no.

“LO: Just a second. Let’s don’t argue with the witness, Trial Counsel. I think that you had best rephrase your question.

“Q. Is this a just debt, Sergeant WEBB?

“A. No, it is not.

“Q. Why did you sign that?

“A. I explained to the court and I repeat myself, there was a cash shortage that had been definitely arrived at in the American Embassy Club. I signed it, as I explained to the court before, I repeat myself, I was shook and I thought it was the wise thing to do.

“Q. Didn’t you make any complaint at the time you signed this to either one of these witnesses ?

“A. I did make a complaint. It was explained. Also, I had made previous complaints as to the manner in which the audit and to the fact that there had not been an audit of the club.

“Q. Were you forced into signing this ?

“A. No, sir, I was not. *

“Q. Still you went ahead and signed it?

“A. Yes, sir, I did.”

The board of review below pointed out the evidence shows that the accused signed the instru-ment obligating himself to pay $2062.26, after an audit of his accounts as manager of the Embassy Club showed a shortage in that amount.

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Opinion of the Court

ROBERT E. Quinn, Chief Judge:

The accused stands convicted of one specification alleging the wrongful and dishonorable failure to pay a debt due to the American Embassy Club, Seoul, Korea (Charge I, specification 2), and one charge of dishonorable failure to maintain a sufficient bank balance to pay a $20.00 check drawn by the accused and issued to the Palace Cafe, Santa Ana, California (Charge I, specification 6), in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. The sentence includes a bad-conduct discharge (suspended) and six months confinement at hard labor. On this appeal the validity of the con-yiction is challenged on two grounds.

[424]*424First, the accused contends that evidence relating to the charges against him was obtained as a result of an illegal search and seizure. The accused was brought to trial on six charges. At trial, defense counsel objected to the admission of certain evidence relating to specifications 3, 4, and 5 on the ground that the evidence was obtained as a result of unlawful search and seizure, and, alternatively, that the articles seized were merely evidence, not instruments, of the crime charged and were not, therefore, subject to seizure. See Boyd v United States, 116 US 616, 16 S Ct 524, 29 L ed 746; United States v Rhodes, 3 USCMA 73, 11 CMR 73.¹ The objection was overruled by the law officer. On appeal, the ruling was reversed by the board of review. The board of review dismissed specifications 4 and 5 on the ground that the papers belonging to the accused, which were seized by agents of the Criminal Investigations Detachment, were not the fruits or instru-mentalities of crime but consisted merely of evidentiary matter not capable of being legally seized.²

Neither the objection at the trial, nor the defense brief before the board of review, mentions the two specifications which are still outstanding. Ordinarily, the failure to ob-ject to the admission of evidence obtained as a result of search and seizure precludes the accused from asserting on appeal that the search and seizure were illegal. United States v Fisher, 4 USCMA 152, 15 CMR 152. The reason for the rule is that if objection is made at the trial evidence might be presented by the prosecution to show that in fact the search and seizure were legal. See United States v Dupree, 1 USCMA 665, 5 CMR 93. Appellate defense counsel, however, contends that the waiver rule is inapplicable here because there is “ample evidence” of the surrounding circumstances upon which the court can “reach a considered decision,” and that it would be a miscarriage of justice to disregard the plain error present in the case. The record of trial does not support these broad assertions.

According to the evidence, there were three separate searches of the personal effects of the accused. The first search was of a brief case taken from the accused’s car by a female civilian who appeared at the Criminal Investigations Detachment office to file a complaint of assault and battery against the accused. The second search was of several boxes belonging to the accused which he had left in the garage of the complainant. These were obtained with the consent of the owner of the premises. She told the agents she did not want the articles and she “didn’t want anything more to do with” the accused. The boxes were brought back to the Criminal Investigations Detachment office and placed in the evidence locker. The next morning the agents “got permission to search and . . . [they] went through it.” Permission was also obtained from the accused’s commanding officer to search the accused’s effects in his barracks. In the course of “one of . . . [the] searches” the agents found “a letter from the Embassy Club, the Embassy in Korea, for quite a bit of money.” They also found “a letter stating that he [the accused had] agreed to pay a certain amount of money.”

Considering the care with which defense counsel framed his objection and his express limitation of the objection to the evi-dence offered in support of specifications 3, 4, and 5, it is difficult to escape the conclusion that defense counsel believed there was no valid ground for exclusion of the evidence now challenged as inadmissible. Had there been an objection, the prosecution could have developed further the factual basis for the authority to make the second and third searches. Under the circumstances, the accused waived his right to object to the search and seizure on the ground of lack of authority. As for the alternate ground that the matter seized was evidentiary, [425]*425suffice ifc to say that the written acknowledgment of the obligation to pay the Embassy Club and the cancelled check were part of the offenses charged, not merely evidence thereof. United States v Marrelli, 4 USCMA 276, 15 CMR 276.

As his second assignment of error, the accused maintains that the debt of $2062.26 due to the American Embassy Club³ is in fact a disputed claim which cannot be the basis of a charge of dishonorable nonpayment. See Manual for Courts-Martial, United States, 1951, paragraph 2136. The argument is founded upon the following cross-examination testimony by the accused:

“Q. [TC] Sergeant WEBB, are you familiar with Prosecution Exhibit 1, the acknowledgement of your debt. Would you like to see it?

“A. Yes, sir, I would.

“The trial counsel handed Prosecution Exhibit 1 to the witness.

“Q. That is your signature on it, is it not?

“A. Yes, sir, that is correct.

“Q. You’ve heard in deposition testimony that you signed this voluntarily and of your own free will, is that correct?

“A. That is correct.

“Q. Then you dispute the justness of this debt?

“A. Might I ask . . .

“Q. Answer my question yes or no.

“LO: Just a second. Let’s don’t argue with the witness, Trial Counsel. I think that you had best rephrase your question.

“Q. Is this a just debt, Sergeant WEBB?

“A. No, it is not.

“Q. Why did you sign that?

“A. I explained to the court and I repeat myself, there was a cash shortage that had been definitely arrived at in the American Embassy Club. I signed it, as I explained to the court before, I repeat myself, I was shook and I thought it was the wise thing to do.

“Q. Didn’t you make any complaint at the time you signed this to either one of these witnesses ?

“A. I did make a complaint. It was explained. Also, I had made previous complaints as to the manner in which the audit and to the fact that there had not been an audit of the club.

“Q. Were you forced into signing this ?

“A. No, sir, I was not. *

“Q. Still you went ahead and signed it?

“A. Yes, sir, I did.”

The board of review below pointed out the evidence shows that the accused signed the instru-ment obligating himself to pay $2062.26, after an audit of his accounts as manager of the Embassy Club showed a shortage in that amount. About a year before, the accused paid the Club $1000.00 for a similar shortage in his accounts. Moreover, in accordance with the terms of the instrument, the accused attempted to obtain a monthly allotment form to satisfy the obligation. The attempt failed but the accused made no other efforts to pay the debt and he did not reply to a letter received from the Club “stating the fact that they had not received any payment.” In the light of this evidence, there is no “genuine dispute” as to the legality or the amount of the debt. See Manual for Courts-Martial, supra, paragraph 2136.

[426]*426The decision of the board of review is affirmed.

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10 C.M.A. 422, 10 USCMA 422, 27 C.M.R. 496, 1959 CMA LEXIS 297, 1959 WL 3656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-webb-cma-1959.

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