United States v. Webber

42 M.J. 675, 1995 WL 369579
CourtUnited States Air Force Court of Criminal Appeals
DecidedJune 14, 1995
DocketACM 30744
StatusPublished
Cited by1 cases

This text of 42 M.J. 675 (United States v. Webber) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal 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. Webber, 42 M.J. 675, 1995 WL 369579 (afcca 1995).

Opinion

OPINION OF THE COURT

SCHREIER, Judge:

Pursuant to mixed pleas, members convicted appellant of dereliction of duty, larceny of $60,000, and numerous bad check offenses. Articles 92, 121, and 134, UCMJ, 10 U.S.C. §§ 892, 921, and 934 (1988). The approved sentence is a dishonorable discharge, confinement for 10 years, and total forfeitures. Appellant asserts four errors concerning the admission of a deposition, failure to grant a challenge for cause, factual sufficiency of the finding of guilty to larceny, and sentence severity. We will discuss only those alleged errors pertaining to the admissibility of the deposition and the sufficiency of proof of the dollar amount of the larceny. Finding no prejudicial error, we affirm.

[677]*677FACTS

Appellant was the Custodian of Postal Effects (COPE) at the Iraklion Air Station (AS), Greece, post office. He was responsible for receiving the cash which postal customers paid for money orders, preparing a daily report, depositing the money in the bank, and obtaining a cashier’s check or American Express money order to pay the United States Postal Service (USPS) for the money orders issued.

The Air Force initiated an audit when the USPS reported it was missing payments from Iraklion AS for money orders it paid. The auditors discovered tens of thousands of dollars in undeposited funds in appellant’s safe, the postal clerk’s safe, and a third safe known as the registry vault. A criminal investigation ensued. The investigation revealed over $67,000 was missing. The postal clerk, Airman Mumford, admitted to stealing about $4,900 and was subsequently convicted at a court-martial. The postmaster, SSgt D, denied taking any money, but received an Article 15 for dereliction of duty and was discharged with an Under Other Than Honorable Conditions discharge about two months before appellant’s trial.

Appellant pled guilty by exceptions and substitutions to stealing $30,000, but was convicted of the theft of $60,000, as charged. The government introduced evidence of the audit and other evidence concerning appellant’s expensive lifestyle and purchases over the time frame when the deposits were not made.

ADMISSION OF DEPOSITION

SSgt D, the postmaster, returned to the United States following his administrative discharge. The record of trial indicates that he initially intended to return to Iraklion AS for the May 12th trial, but subsequently declined because of his recently acquired civilian employment. Therefore, on May 4,1993, the convening authority approved the request for his deposition in the United States. Appellant’s counsel was aware of the scheduling of the deposition about this same time, but the record is unclear when appellant received written notice of the scheduling of the deposition.

After appellant’s attempt to quash the deposition failed, appellant and one of his counsel planned to attend the May 8th deposition. The government provided plane tickets and made billeting reservations for appellant and his counsel. However, literally hours before the plane was to take off for the five-day temporary duty (TDY), appellant discovered that the Joint Federal Travel Regulations (JFTR) did not authorize per diem for the travel. The government was exploring the possibility of an advance payment or a subsequent reimbursement from the commander’s operation and maintenance funds when appellant and his counsel refused to attend the deposition. Appellant claimed he was without funds to make the trip as his bank accounts were closed and the majority of his military pay was being withheld pursuant to a military pay order to cover his bad checks.

Trial defense counsel indicated that appellant’s presence was necessary to adequately confront the witness and, therefore, he did not ask the local area defense counsel (ADC) to attend the deposition on appellant’s behalf to ask questions. He also stated that he could not attend the deposition and fully participate in the trial scheduled to convene just a few days after his return. During trial, defense counsel indicated that he was unaware of the government’s concession that it would ask for a delay in the proceedings to compensate for any jetlag experienced by appellant or his counsel. The deposition was initially scheduled for Saturday, May 8th, but when the defense did not travel, it was held on Friday, May 7th, to avoid overtime pay for the court reporter.

Both at trial and before this Court, appellant argues that the deposition was inadmissible because appellant had insufficient notice of the scheduling of the deposition and good cause prevented his appearance at it. See R.C.M. 702(e) and (g)(1)(A). The military judge specifically found that the advanced pay issue was not fully developed because the defense made a determination not to go before all options had been explored. Second, he found that the potential scheduling impact of the TDY to attend the deposition and the pending trial date was not an impediment to defense attending the deposition because the [678]*678defense would have been entitled to a delay for preparation if requested. Finally, he ruled that admission of the deposition was not precluded because it was moved up one day. In sum, the military judge concluded that appellant and his counsel waived their attendance at the deposition.

Appellate courts apply an abuse of discretion standard in determining whether a military judge has abused his or her broad discretion in admitting a deposition. United States v. Hampton, 33 M.J. 21, 23 (C.M.A.1991). R.C.M. 702(g)(1)(A) provides that an accused has the right to be present at a deposition except when “the accused, absent good cause, fails to appear after notice of time and place of deposition____” The Rules specifically indicate that the parties do not have a right to be present at a written deposition. R.C.M. 702(g)(2)(B).

Initially, we find that appellant had sufficient, albeit short, oral notice concerning the timing of the deposition. Additionally, even though R.C.M. 702(e) requires written notice of the scheduling of a deposition, we find no prejudice to appellant under the circumstances of this case when appellant’s counsel knew the timing of the deposition, the parties were actively pursuing travel arrangements for appellant and his counsel, and trial defense counsel never requested a delay in the deposition for preparation or travel purposes. Article 59(a), UCMJ, 10 U.S.C. § 859(a); see United States v. Marsh, 35 M.J. 505, 508-09 (A.F.C.M.R.1992).

The parties frame the issue as whether appellant’s financial status and apparent lack of entitlement to advance travel pay provided good cause for his failure to attend the deposition. However, we agree with the conclusion of the military judge that appellant decided not to attend the deposition before all options had been fully resolved, and therefore, voluntarily and intentionally waived his attendance at the deposition.

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Related

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46 M.J. 567 (Air Force Court of Criminal Appeals, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
42 M.J. 675, 1995 WL 369579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-webber-afcca-1995.