

   
   
   
   U.S. v. Smith



IN THE CASE OF
UNITED STATES, Appellee
v.
Juana L. SMITH, Specialist
U.S. Army, Appellant
 
No. 98-0356
Crim. App. No. 9601110
 
United States Court of Appeals for the Armed
Forces
Argued October 5, 1998
Decided May 26, 1999

SULLIVAN, J., delivered the opinion of
the Court, in which COX, C.J., and CRAWFORD and GIERKE, JJ., joined; EVERETT,
S.J., filed an opinion concurring in the result.
 


Counsel
For Appellant: Captain Paul J. Perrone,
Jr. (argued); Colonel John T. Phelps II, Lieutenant Colonel Michael
L. Walters, and Major Leslie A. Nepper (on brief); Lieutenant Colonel
Adele Odegard.
For Appellee: Captain Mary E. Braisted
(argued); Colonel Russell S. Estey (on brief); Colonel Joseph
E. Ross, Lieutenant Colonel Frederic L. Borch, III, Major Lyle D. Jentzer,
and Captain Elizabeth N. Porras
Military Judge: P. L. Johnston
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge SULLIVAN delivered the opinion of the Court:
During June of 1996, appellant was tried by
a general court-martial composed of officer and enlisted members at Aberdeen
Proving Ground in Maryland. In accordance with her pleas, she was found
guilty of attempted larceny, conspiracy to commit larceny, larceny, and
knowingly making a false statement, in violation of Articles 80, 81, 121,
and 134, Uniform Code of Military Justice, 10 USC §§ 880, 881,
921, and 934, respectively. She was sentenced to a bad-conduct discharge,
total forfeitures, and reduction to the grade of E-1. On September 10,
1996, the convening authority approved the sentence but suspended execution
of one-third forfeiture of pay until appellant was placed on involuntary
excess leave. The Court of Criminal Appeals, on November 19, 1997, affirmed
the findings of guilty and so much of the sentence as provided for the
punitive discharge, forfeiture of two-thirds pay per month until execution
of the discharge, and the reduction to E-1.
On April 28, 1998, this Court granted review
of the following question of law:



WHETHER APPELLANTS PLEA TO ATTEMPTED LARCENY
IS IMPROVIDENT BECAUSE THE PLEA WAS BASED ON AN INADEQUATE FACTUAL PREDICATE
IN THAT THE ACTS ADMITTED TO ARE INSUFFICIENT TO ESTABLISH MORE THAN MERE
PREPARATION.



On September 30, 1998, we granted review of the
following supplemental issue:



WHETHER THE APPLICATION OF ARTICLE 57(a)(1),
UCMJ, 10 USC § 857(a)(1), VIOLATES THE EX POST FACTO
CLAUSE OF THE UNITED STATES CONSTITUTION WITH RESPECT TO APPELLANT.



In light of this Courts decision in United
States v. Schoof, 37 MJ 96, 103 (1993), we hold that appellants pleas
of guilty to attempted larceny were provident. On the second issue, a majority
of this Court has resolved it in appellants favor, but nonetheless affirms
the decision of the appellate court below. See United States
v. Gorski, 47 MJ 370, 375 (1997); cf. Id. at 376-77 (Sullivan,
J., concurring in part and in the result).
A stipulation of fact was agreed to by appellant
and admitted into evidence. It stated:



Specialist JUANA L. SMITH (SPC SMITH) is
an Administrative Clerk for Headquarters and Headquarters Company, 16th
Ordnance Battalion, 61st Ordnance Brigade, U.S. Army Ordnance
Center and School, Aberdeen Proving Ground, Maryland (HHC 16th
Ord Bn). In the course of her duties she is entrusted with the care and
control of the personnel data cards for the Weapons Department of HHC 16th
Ord Bn. These data cards contain confidential information about the soldiers
in the Weapons Department of HHC 16th Ord Bn, including their
Social Security numbers, birthdates, past units of assignment, and other
related information.
In early 1995, SPC SMITH overheard a conversation
between her cousin NIKIA SMITH and NIKIAS friend ANNETTE, about how to
apply for credit cards from Central Fidelity Bank (CFB) in Richmond, Virginia,
using fake names, and other peoples personal and job information. SPC
SMITH devised a scheme to order credit cards from CFB using fake names
and the personal and job information of other soldiers in HHC 16th
Ord Bn which she could get from their personnel data cards. SPC SMITH was
having financial problems, and planned to use the credit cards to make
purchases for herself and her son.

* * *
During September 1995, MS. CARR, an acquaintance
of SPC SMITH, told SPC SMITHs friend, MICHELE D. MCNAIR (MICHELE), how
she had obtained a credit card from CFB using a fake name and false information.
SPC SMITH and MICHELE planned together to order a credit card from CFB
using a fictitious name and the personal and job information of soldiers
in the Weapons Department HHC 16th Ord Bn. It was the intention
of SPC SMITH and MICHELE, upon receiving the credit card, to make purchases
using the credit card, without ever paying CFB for the items charged to
the account.
A couple of weeks later, SPC SMITH went through
the NCOER book of the Weapons Department of HHC 16th Ord Bn
and selected the social security number of SSG KATHY SMITH (SSG SMITH).
SPC SMITH decided to use SSG SMITHs name because it was similar to her
own. SPC SMITH got her cousins birthdate, a business address from a sign
she saw at Aberdeen Proving Ground, and wrote all of this information down
on an index card. SPC SMITH then gave the index card to her friend MICHELE,
and told MICHELE to call CFB and apply for a credit card.
On 29 September 1995, MICHELE telephoned
CFB from a pay phone at Aberdeen Proving Ground and applied for a Visa
credit card. Later in the day, SPC SMITH called MICHELE to confirm that
MICHELE had placed the credit card application.
On 6 October 1995, MICHELE called CFB to check
on the status of their credit card application and spoke to RHONDA BLOUNT,
who told her that the application looked promising. Later in the day, SSG
SMITH received a phone call from RHONDA BLOUNT at CFB about the credit
card application that MICHELE had ordered under SSG SMITHs name. SSG SMITH
then told RHONDA BLOUNT that she had never ordered any credit card from
CFB and canceled the application. Had SPC SMITH and MICHELE been successful
in getting a credit card under SSG SMITHs name, they would have made purchases
using that credit card without ever paying CFB for the items charged to
the account.



The military judge questioned appellant about
her understanding of why she was guilty of the attempted larceny charge
based on the above facts. The record states:



MJ: Okay. Lets look at the first charge,
which is the attempted larceny, and this one alleges that on or about 6
October 1995, you attempted to commit the offense of larceny, and what
are the facts relating to this particular offense?
ACC: Its - the - where--
MJ: Or is that the same thing we were just
talking to - about the conspiracy?
ACC: Yes, sir.
MJ: Okay. I understand. So you and Michele
entered into an agreement where she was going to call, and then in fact
she did call?
ACC: Yes, sir.
MJ: And for some reason that you dont know,
the bank caught on?
ACC: Yes.
MJ: Okay, so, the charge is written in such
a way it says that you did at or near Aberdeen Proving Ground. It appears
to me that the theory that the Government is pursuing in this case is that
you are responsible for the act of Michele in making this phone call because
you were co-conspirators, and one co-conspirator is responsible for the
acts of another co-conspirator if the act is committed during the course
of the conspiracy and while youre still a member of that conspiracy. Did
you and your defense counsel talk about that?
ACC: Yes, sir.
MJ: Okay. And do you understand that?
ACC: Yes, sir.
MJ: Okay. So then with regard to the attempt,
what youve told me is that, as part of this conspiracy, Michele made a
phone call to get the credit card, it was done with the specific intent
to get the credit card, so that either you or Michele could purchase items
with the credit card and not pay the bank back. Is that right?
ACC: Yes, sir.
MJ: And that the act of calling was more
than mere preparation; that is, it was a step towards committing the crime,
is that correct?
ACC: Yes, sir.



(Emphasis added.)
___ ___ ___
Appellant was charged with and pleaded guilty
to attempted larceny "on or about 6 October 1995, [by] attempt[ing] to
steal some money, the property of Central Fidelity Bank, Richmond, Virginia,"
in violation of Article 80. 1
For the first time, before the Court of Criminal Appeals, she attacked
her pleas to attempted larceny on the basis that she did not admit sufficient
facts to legally support her guilty pleas to this offense. She relied most
heavily on this Courts decisions in United States v. Byrd, 24 MJ
286 (1987), and United States v. Presto, 24 MJ 350 (1987), and argued
that her admitted conduct did not constitute "substantial steps amounting
to more than mere preparation" to commit the crime of larceny. Final Brief
at 7.
Appellant, before this Court, again argues
that, under our case law, her admitted conduct was legally insufficient
to constitute an attempt to steal money from Central Fidelity Bank. She
particularly contends that her confederates telephone call applying for
the bank credit card left too many steps uncompleted before an actual taking
of money from the bank could occur. See Byrd, supra
at 290. She notes that they "still had to obtain the credit card, take
the credit card to a store, pick out items to buy, and then present the
credit card for payment." Final Brief at 6. She also cites this Courts
decision in United States v. Church, 32 MJ 70, 72 (1991), for the
proposition that an attempt requires an act that would ordinarily result
in the commission of the crime, "but for the intervention of some extraneous
factor." Finally, she cites United States v. Presto, supra,
for the proposition that phone calls showing an intent to commit a crime
are no more than preparation as a matter of military law.
We note that in United States v. Schoof,
supra,
a case decided after Presto and Byrd, this Court recognized
the different approaches to determining when an illegal attempt to commit
a crime has occurred. Judge Wiss, writing for the Court, acknowledged that
no "litmus test for distinguishing preparation from attempt" existed
in our case law. He also recognized that a "twilight zone" may exist between
the two, where it may not be clear under the various tests whether an attempt
has occurred. Nevertheless, he stated for the Court:



Quite simply, where an accused pleads guilty
and during the providence inquiry admits that he went beyond mere preparation
and points to a particular action that satisfies himself on this point,
it is neither legally nor logically well-founded to say that actions that
may be ambiguous on this point fall short of the line "as a matter of law"
so as to be substantially inconsistent with the guilty plea. Art. 45(a),
UCMJ, 10 USC § 845(a).



37 MJ at 103.
Turning to appellants case, we initially note
that she pleaded guilty to attempted larceny of bank funds from Central
Fidelity Bank. Moreover, she was specifically advised as to the "mere preparation"
and "substantial step" distinction in the law of attempt, but she insisted
that her conduct amounted to more than mere preparation. Finally, she specifically
pointed out to the trial judge the action that went beyond mere preparation,
i.e.,
her confederates phone call to the bank falsely applying for the credit
card. Clearly, the more recent Schoof test for determining valid
guilty pleas in attempt cases was satisfied here.
In addition, we conclude that appellants admissions
in their entirety show a substantial step toward the commission of the
charged crime of larceny. See Church, 32 MJ at 74 (Sullivan,
C.J., concurring). This was not a case of a simple exploratory phone call
to inquire about a possible means to commit a crime. Cf. Presto,
24 MJ at 352. Appellant admitted that she alone had previously devised
and executed a particular scheme to falsely obtain a credit card from that
same bank and used it to make purchases. 2
Also, to continue her scam, she gave Michele McNair unauthorized military
personnel information to acquire a second credit card from this same bank.
Id.
Finally, her admitted actions, in directing her confederate to make the
application call and then later ensuring it was made, amply demonstrated
her unequivocal criminal intent to commit larceny. Cf.
Byrd,
24 MJ at 290. Thus, while several steps remained for the completion of
the larceny, we conclude that execution of the gravamen of this crime clearly
went beyond "mere preparation." See also Church,
supra
at 73 (accused did everything he thought necessary and possible to make
enterprise successful).
The decision of the United States Army Court
of Criminal Appeals is affirmed. Execution of the forfeitures and reduction
prior to the date of the convening authoritys action is hereby declared
to be without legal effect. Any forfeitures collected prior to that date
and any pay and allowances withheld because of the premature reduction
in grade will be restored. The record of trial is returned to the Judge
Advocate General of the Army for appropriate action.
FOOTNOTES:
1 Article 80 provides:



(a) An act, done with specific
intent to commit an offense under this chapter, amounting to more than
mere preparation and tending, even though failing, to effect its commission,
is an attempt to commit that offense.
(b) Any person subject to this
chapter who attempts to commit any offense punishable by this chapter shall
be punished as a court-martial may direct, unless otherwise specifically
prescribed.
(c) Any person subject to this
chapter may be convicted of an attempt to commit an offense although it
appears on the trial that the offense was consummated.



(Emphasis added.)
2 Appellant
pleaded guilty to an earlier larceny from this same bank by her use of
a credit card which she alone fraudulently acquired over the phone.
EVERETT, Senior Judge (concurring in the result):
I concur in the conclusion that appellants
pleas were provident. However, I reach that result by a slightly different
route. In my view, the facts relayed in the stipulation would be insufficient
to establish guilt if only appellant had been involved. Mere preparation,
rather than an attempt, would be proven. Cf. United States v.
Byrd, 24 MJ 286 (CMA 1987); United States v. Presto, 24 MJ 350
(CMA 1987). Byrd also makes clear that, if the stipulated facts
show no more than preparation, a plea of guilty predicated on that stipulation
is improvident and must be set aside.
In this case, however, the stipulation reveals
that not only appellant, but also another soldier was involved in the larcenous
scheme. Indeed, the same stipulation was the basis for appellants pleas
of guilty to conspiracy to commit larceny  the same larceny that was the
subject of the attempt. Where a conspiracy has been entered to commit a
crime, and acts have been performed by the conspirators to achieve the
criminal purpose of the conspiracy, a conspirator who personally has committed
some of these acts may be guilty of an attempt, even though these same
acts might be insufficient to constitute an attempt if no conspiracy was
involved. To me, the agreement with another to commit a crime has great
significance in itself for the purpose of demonstrating that someone has
moved beyond "mere preparation" to attempt. Certainly, the agreement evidences
the seriousness of criminal purpose on appellants part.
Under §5.05(3) of the ALI Model Penal
Code, conspiracy and attempt are both inchoate crimes, and an accused may
not be convicted of both a conspiracy and an attempt when their purpose
was the same. See ALI Model Penal Code and Commentaries 484 (1985).
Military justice prescribes no such flat prohibition against conviction
for both the conspiracy and the attempt. Moreover, no issue of multiplicity
has been raised, and even if appellants convictions of both conspiracy
and attempt were multiplicious, any effect thereof on sentence would be
unlikely. Accordingly, I concur in the judgment.
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