United States v. Wickersham

14 M.J. 404, 1983 CMA LEXIS 19116
CourtUnited States Court of Military Appeals
DecidedJanuary 17, 1983
DocketNo. 40,414; ACM S24964
StatusPublished
Cited by2 cases

This text of 14 M.J. 404 (United States v. Wickersham) 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. Wickersham, 14 M.J. 404, 1983 CMA LEXIS 19116 (cma 1983).

Opinions

OPINION OF THE COURT

FLETCHER, Judge:

Appellant was found guilty of “unlawfully entering] a storage area of the United States Air Force,” in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934.1 This finding was based on his plea of guilty accepted by the military judge after an inquiry into the plea’s providence.2 Appellant was sentenced to a bad-conduct discharge, forfeiture of $100 pay per month for 6 months and reduction to Airman First Class. The convening and supervisory authorities approved the sentence, and the latter suspended the discharge. The Court of Military Review affirmed this action. 10 M.J. 615 (1980).

This Court specified the following issue for review:

WHETHER A FENCED[3] STORAGE AREA MAY BE THE SUBJECT OF AN [405]*405UNLAWFUL ENTRY UNDER ARTICLE 134, UCMJ.

We hold that “a storage area of the United States Air Force” may lawfully be the subject of such a charge.

The first question we shall address is whether unlawful entry under any circumstances constitutes a criminal offense for service members. See generally United States v. Kick, 7 M.J. 82, 83-84 (C.M.A. 1979). We note that a simple trespass upon the land or personal property of another was not a criminal offense at common law. Nevertheless, it is clear that such a trespass can be made an offense by statute and this has been done in the past under various circumstances. See Burdick, Law of Crime § 720 (1946). In our military justice system, Congress has the power to designate such criminal offenses. U.S. Const, art. I, § 8, cl. 14.

Congress has not expressly prohibited such conduct by service members in any particular penal provision of the Uniform Code of Military Justice. In Article 134 it has proscribed “all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital.” In determining what offenses are actually prohibit-" ed by this statute, recourse must be had to authoritative interpretations of military law, existing service customs, and common usages. See United States v. Kick, supra.

Decisions of this Court in United States v. Gillin, 8 U.S.C.M.A. 669, 25 C.M.R.

173 (1958), and United States v. Love, 4 U.S.C.M.A. 260, 15 C.M.R. 260 (1954), clearly hold that unlawful entry by a service-member is a criminal offense prohibited by Article 134. Boards of Review have followed these precedents at least on this general point. See United States v. Witt, 25 C.M.R. 674 (A.B.R.1958), rev’d on other grounds, 26 C.M.R. 517 (1958); United States v. Esposito, 21 C.M.R. 406 (A.B.R. 1956), pet. denied sub nom., United States v. Beil, 7 U.S.C.M.A. 771, 22 C.M.R. 331 (1956). Prior to the enactment of the Uniform Code of Military Justice, unlawful entry was acknowledged as a criminal offense under Article of War 96 (1920).4 Finally, the Manual for Courts-Martial, U.S. Army, 1949, recognized that unlawful entry was an offense under this Article of War.5 Accordingly, we hold that unlawful entry was intended by Congress to be an offense under Article 134. See United States v. Kick, supra.

The critical issue in this case may now be properly addressed. The question is whether “a storage area of the United States Air Force” located on base may lawfully be the subject of such an unlawful-entry charge under Article 134. As indicated above, the Uniform Code of Military Justice provides no particular answer to this question. Accordingly, we must again turn to the other sources of military law to resolve this issue.

In United States v. Love, supra at 262,15 C.M.R. at 262, this Court held that a tent was a proper subject of an unlawful-entry charge under Article 134. The Court accepted the conclusion of the drafters of the [406]*406Manual for Courts-Martial, United States, 1951, that Congress in enacting Article 130, UCMJ, 10 U.S.C. § 930, the housebreaking statute, intended the words “building or structure” to include a tent.6 It also ruled that this Manual definition “necessarily include[d]” those areas which Congress intended to be subject to an unlawful-entry charge under Article 134.

In United States v. Gillin, supra, the Court held that an automobile was not a lawful subject of an unlawful-entry charge under Article 134. In “dictum” not expressly joined by the other Judges of the Court, Judge Latimer opined that Congress intended to include only “real property or.. . such form of personal property as is usually used for storage or habitation.” United States v. Gillin, supra at 672, 25 C.M.R. at 176. His opinion was based on Congress’ action in enacting a housebreaking statute and an unlawful-entry statute for the District of Columbia around the time the Uniform Code of Military Justice was enacted.

In United States v. Breen, 15 U.S.C.M.A. 658, 659, 36 C.M.R. 156, 157 (1966), the Court held that a servicemember’s locker was not a proper subject of an unlawful entry charge under Article 134. Judge Ferguson writing for the majority stated

the crime of unlawful entry is limited to real property, and the sort of personal property which amounts to a structure used for habitation or storage, e.g., a trailer or van.

He concluded that a locker, even though usually used for storage purposes, was outside the class of property protected by this penal provision.

Appellant, relying on United States v. Witt, supra, asserts that “a storage area of the United States Air Force” is not a “building or structure” as contemplated by Congress in Article 130. Contra, United States v. Esposito, supra. Accordingly, since unlawful entry is a lesser-included offense of housebreaking, he argues that a storage area necessarily cannot also be the subject of an unlawful-entry charge. See United States v. Gillin, supra (Quinn, C.J., concurring in the result). We disagree with the premise of appellant’s argument.

The legislative history of Article 130 (housebreaking) clearly indicates that Congress intended this criminal offense to apply under broader circumstances than explained in paragraph 180e, 1949 Manual, supra. See Hearings on H.R. 2498 Before a Subcommittee of the House Committee on Armed Services, 81st Cong., 1st Sess., published in Index and Legislative History, Uniform Code of Military Justice, 1234 (1949).7 This Manual provision, repeating language from paragraph 149e, Manual for Courts-Martial, U.S. Army, 1928, stated that this criminal offense under Article of War 93 applied to “the building of another” and was not restricted to “a dwelling house” as was the related offense of burglary. See Article of War 93(1920); para. 180-d, 1949 Manual, supra. Consequently, the word “structure” in Article 130 is not a term primarily intended by Congress to restrict the legitimate subjects of this criminal offense. See para. 209, 1951 Manual, supra;

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Wilson
76 M.J. 4 (Court of Appeals for the Armed Forces, 2017)
State v. Deitchler
876 P.2d 970 (Court of Appeals of Washington, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
14 M.J. 404, 1983 CMA LEXIS 19116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wickersham-cma-1983.