United States v. Zaiss

42 M.J. 586, 1995 CCA LEXIS 101, 1995 WL 148296
CourtArmy Court of Criminal Appeals
DecidedApril 6, 1995
DocketARMY 9300931
StatusPublished
Cited by2 cases

This text of 42 M.J. 586 (United States v. Zaiss) is published on Counsel Stack Legal Research, covering Army 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. Zaiss, 42 M.J. 586, 1995 CCA LEXIS 101, 1995 WL 148296 (acca 1995).

Opinion

OPINION OF THE COURT AND ACTION ON PETITION FOR NEW TRIAL

GONZALES, Judge:

Contrary to his pleas, the appellant was found guilty, by a military judge sitting as a general court-martial, of attempted larceny of a bug light and larceny of a laptop computer, both of which were military property, in violation of Articles 80 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 921 (1988) [hereinafter UCMJ]. The convening authority approved the adjudged sentence consisting of a dismissal and confinement for forty-five days.

Before this court, the appellant asserts that the evidence is not legally or factually sufficient to support the findings of guilty. He further requests that he be granted a new trial based on newly discovered evidence. We disagree with his assertion and deny his request.

I. The Government’s Case

The appellant departed his unit at Fort Leavenworth, Kansas, in late July 1992, for six months of temporary duty (TDY) with Joint Task Force Bravo (JTFB) in Honduras as the J5 (civil affairs officer). On Friday, 22 January 1993, as part of the process for returning to Fort Leavenworth, the appellant’s unaccompanied baggage was inspected by Mr. Colon-Sanchez, an experienced U.S. military customs inspector, at the appellant’s quarters. Mr. Colon-Sanchez noticed that the appellant was shipping what appeared to be a government issued stand-up bug light and a Zenith laptop computer that was in a black bag and enclosed in a footlocker. He also noticed that a sticker, possibly a government identification sticker, had been removed from the laptop. The appellant told Mr. Colon-Sanchez that the laptop might look like government property, but that it was his personal computer that he brought from Fort Leavenworth. He also told Mr. Colon-Sanchez that he brought the bug light from Fort Leavenworth. Mr. Colon-Sanchez asked the appellant if he had a receipt for these two items to show that they belonged to him and the appellant stated that he did not. Mr. Colon-Sanchez notified his supervisor, who notified the military police, because, as Mr. Colon-Sanchez described the situation, “[I] don’t have authority to apprehend or detain anybody.”

Two military police (MP) investigators, Army Sergeant (SGT) Martori and Air Force Technical Sergeant Polensky, were dispatched to the appellant’s quarters. After being briefed by Mr. Colon-Sanchez, SGT Martori asked the appellant for his inbound [588]*588shipping document (DD Form 1299). Upon reviewing it, she noticed that it did not have an entry for a laptop computer or a bug hght. She asked the appellant, “What’s going on here, sir?” He responded that the laptop belonged to his unit at Fort Leavenworth, but indicated that he hand-carried it with him to Honduras. He also said that he brought the bug fight with him from Fort Leavenworth, but that if it was a problem, he would leave it in Honduras. Sergeant Mar-tori then asked the appellant if anyone could verify that he was authorized to have the laptop. He provided her with the name of Captain (CPT) Yroz and his phone number at Fort Leavenworth. At no time did he tell her that he had inadvertently shipped the laptop to Honduras from Fort Leavenworth in his unaccompanied baggage and had just recently discovered it in the last sealed box he opened. Nor did he explain that he thought the bug light was abandoned military property that he obtained from the JTFB headquarters supply room in October 1992.

The MP investigators went to the JTFB headquarters supply room and obtained a copy of the hand receipt for the government property in the appellant’s quarters. They noticed that the bug fight was the last entry on the last page of the receipt, the same page where the appellant signed twice verifying an inventory on 17 November and once on 18 November 1992. Sergeant Martori then called CPT Yroz who told her that the appellant was not authorized to have the laptop. Captain Yroz also related that the laptop was discovered missing in October 1992, and that he called the appellant in November 1992, to ask him if he had the laptop. The appellant told him that he did not. Mr. Aston, the current hand receipt holder, initiated a report of survey in January 1993, and the value of the laptop was listed as $1,524.00. While CPT Yroz was being questioned by SGT Martori about the laptop, the appellant called CPT Yroz on another fine. When he finished his conversation with SGT Martori, CPT Yroz spoke with the appellant. The appellant told CPT Yroz that he had found the laptop in his unaccompanied baggage the Friday before (15 January 1993), and that he had been trying to contact CPT Yroz on the previous three days to give him this information.

Although not conveyed to SGT Martori, CPT Yroz knew the appellant’s explanation for his inability to account for the whereabouts of the missing laptop. When CPT Yroz spoke with the appellant in November 1992, the appellant explained that he had had possession of the laptop, but only until June 1992. That was when he returned from a TDY/leave trip to find that the locked wall closet he had secured the laptop in had been broken into during his absence and the laptop was missing. He assumed, without verifying serial numbers, that this laptop had been connected to a laser printer in the office. Based on this assumption, he returned some accessories for the laptop to the former hand receipt holder, Major (MAJ) Draffen. Also, CPT Yroz did not mention to SGT Martori that he received a message from the appellant on Tuesday, 19 January 1993. Captain Yroz’s secretary, Mrs. Up-church, had taken the message requesting that CPT Yroz return the appellant’s call. Captain Yroz never did so. According to CPT Yroz, had the appellant requested permission to take a laptop to Honduras, it would have been approved.

Based on the information provided by CPT Yroz, the MP investigators transferred the investigation to Special Agent (SA) Moellering of the Criminal Investigation Command (CID). After being advised for the first time of his Article 31(b), UCMJ, and Miranda rights, the appellant told SA Moellering that he brought the bug fight with him from Fort Leavenworth. He also maintained that he had no knowledge that the laptop was in his possession until the week before when he opened the last sealed unaccompanied baggage box and discovered it. When SA Moellering asked the appellant why he had told the two MP investigators that he had hand-carried the laptop with him to Honduras, the appellant asked for an attorney, thus ending the interview.

The laptop was the property of the appellant’s office at Fort Leavenworth. It was discovered missing by Mr. Aston, the subsequent hand receipt holder after MAJ Draf[589]*589fen, when he conducted a complete serial number inventory in October 1992. He reported this shortfall to CPT Yroz and expressed to him that he thought the appellant was the last known person to have possession of it. Mr. Aston remembered issuing the appellant this same laptop in 1991, because he did not have enough desktop computers to give one to the appellant. At the time he was issued the laptop, the appellant did not sign a sub-hand receipt. Sub-hand receipting was required only when someone in the office wanted to take a laptop on a TDY trip. The appellant had never taken a laptop on any of his previous TDY trips and he did not sign a sub-hand receipt to take a laptop with him to Honduras.

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Cite This Page — Counsel Stack

Bluebook (online)
42 M.J. 586, 1995 CCA LEXIS 101, 1995 WL 148296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-zaiss-acca-1995.