

   
   
   
   U.S. v. Knight



IN THE CASE OF
UNITED STATES, Appellee
v.
Charles G. KNIGHT, Sergeant First Class
U.S. Army, Appellant
 
No. 98-0946
Crim. App. No. 9700322
 
United States Court of Appeals for the Armed
Forces
Argued June 2, 1999
Decided September 28, 1999
SULLIVAN, J., delivered the opinion of
the Court, in which COX, C.J., and CRAWFORD and GIERKE, JJ., joined. EVERETT,
SJ., filed an opinion concurring in the result.

Counsel
For Appellant: Captain
Kirsten V. Campbell-Brunson (argued); Colonel John T. Phelps II
and Lieutenant Colonel Adele H. Odegard (on brief); Major Holly
S. G. Coffey, Major Leslie A. Nepper, and Captain Paul Fiorino.
For Appellee: Captain Kelly
R. Bailey (argued); Colonel Russell S. Estey and Lieutenant
Colonel Eugene R. Milhizer (on brief).
Military Judge: Kenneth D.
Pangburn
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge SULLIVAN delivered the opinion of the Court.
On January 6 and February 20, 1997, appellant
was tried by a military judge sitting alone as a general court-martial
at Fort Stewart, Georgia. In accordance with his pleas, he was found guilty
of maltreatment of a subordinate servicemember,1
three specifications of larceny, and wrongful use of a military identification
card, in violation of Articles 93, 121, and 134, Uniform Code of Military
Justice, 10 USC §§ 893, 921, and 934, respectively. He was sentenced
to confinement for 2 years, forfeiture of all his pay, and reduction to
pay grade E-1. The convening authority, on May 7, 1997, approved the sentence
and ordered it executed. The Court of Criminal Appeals affirmed in an unpublished
opinion on July 22, 1998.
On March 1, 1999, this Court granted review
on the following issues:




I.
WHETHER APPELLANTS GUILTY PLEA TO CRUELTY
AND MALTREATMENT WAS IMPROVIDENT BECAUSE APPELLANTS ACTS ARE NOT "CRUELTY
AND MALTREATMENT" AS ENVISIONED BY ARTICLE 93.

II.
WHETHER A VIOLATION OF ARTICLE 93 IMPLICITLY
REQUIRES THAT THE OFFENDER IN SOME WAY COMMIT HIS CRUELTY OR MALTREATMENT
THROUGH AN OSTENSIBLE EXERCISE OF AUTHORITY.

III.
WHETHER APPLICATION OF UCMJ ARTICLE 57(a)(1),
IN APPELLANTS CASE, VIOLATES THE EX POST FACTO CLAUSE
OF THE CONSTITUTION (U.S. CONST. ART. 1 § 9) WHERE ALL OF THE OFFENSES
OF WHICH APPELLANT WAS CONVICTED WERE COMMITTED BEFORE 1 APRIL 1996, THE
EFFECTIVE DATE OF UCMJ ARTICLE 57(a)(1). UNITED STATES V. GORSKI,
47 MJ 370 (1997).



Briefs were ordered on Issues I and II only. We
hold that appellants guilty pleas to violating Article 93 were provident.2
The facts in this case concerning the granted
issues were found by the appellate court below, as follows:



The appellant, by virtue of his position
as the noncommissioned officer-in-charge of the maintenance section of
a maintenance company, had in his quarters a unit personnel roster containing
the names, ranks, social security numbers, dates of birth, and other personal
data of soldiers in his unit. Also in his quarters was an old military
identification card that appellant had mislaid, replaced with a new card,
and later found; instead of returning the unauthorized excess identification
card to military authorities, the appellant had placed it in a jewelry
box. Mr. Wendell Knight, the appellants brother, visited him and, true
to Wendells history of obtaining credit under false pretenses, he used
the excess identification card and the personnel roster to create a false
identification card that contained the appellants picture and the personal
information of one of appellants subordinates. Wendell selected the subordinate,
a recently promoted sergeant first class section chief, to capitalize on
what he correctly assumed was a carefully amassed history of good credit.
He then used the card and other personal data to open charge accounts in
the victims name at three stores in Savannah, Georgia.
At Wendells request, and facing considerable
personal financial straits, the appellant then used the identification
card and charge accounts at the three stores from 1 to 10 March 1996 to
purchase numerous items of a total value of over $3,200.00. He knew his
use of the charge accounts would create debts in his subordinates name
that the appellant did not intend to pay. The appellant also knew that
the stores would demand payment from the victim, and that resolving the
debts would cause the victim public embarrassment. In fact, the victim
underwent considerable embarrassment and expended great efforts in clearing
his name and his debts. He discovered appellants identity only later as
the criminal investigation unfolded.
Appellant pleaded guilty at trial to maltreating
the victim in this case "by unlawfully creating debts in [Sergeant First
Class (SFC) Fs] name without his consent and then failing to pay said
debts, thereby causing [SFC F] public embarrassment." Appellant does not
contest that SFC F was subject to his orders.



Unpub. op. at 2.
___ ___ ___
Appellants underlying argument is that his
admitted conduct does not constitute maltreatment as proscribed by Article
93. He initially argues that this codal provision requires official misconduct
by a military superior which "ostensibly" causes pain or suffering or injury
to a military subordinate. He later argues that Article 93 requires that
the maltreatment occur while the military superior is acting in a "supervisory
relationship" with the victim. In this light, he concludes that the record
shows only his civilian brothers unknown, fraudulent, card-making conduct
and his own private misconduct in later using this card, acts not legally
sufficient to support his conviction.
Our starting point in addressing these arguments
is Article 93, which states:



§ 893. Art. 93. Cruelty and maltreatment
Any person subject to this chapter who is guilty
of cruelty toward, or oppression or maltreatment of, any person
subject to his orders shall be punished as a court-martial may direct.



(Emphasis added.) We have not particularly defined
the words "maltreatment" or "subject to his orders," as used in this statute.
See United States v. Curry, 28 MJ 419, 424 (CMA 1989) (relying
on Manual for Courts-Martial explanation for determining a victim of this
offense). Moreover, there is some disagreement over the precise scope of
this statute in the service appellate courts. For example, in United
States v. Hanson, 30 MJ 1198, 1201 (AFCMR 1990), the Air Force court
held that "[t]he offense occurs when the treatment, viewed objectively,
results in physical or mental pain or suffering and is abusive or
otherwise unwarranted, unjustified and unnecessary for any lawful purpose."
(Emphasis added.) The Navy-Marine Corps court, however, has rejected a
pain or injury requirement. See United States v. Goddard,
47 MJ 581, 584-85 (N.M. Ct. Crim. App. 1997).
We need not decide today whether Article 93
has an "officiality" requirement. Here, we note that appellant pleaded
guilty to this offense and specifically agreed that his conduct violated
this maltreatment prohibition. He specifically admitted that he used a
phony credit card known to be derived from confidential military information
in his official control as a result of his military duties. Finally, he
admitted that he knew this conduct would cause his section chief command
embarrassment. In these circumstances, post-trial speculation whether appellant
was acting officially at the time of the alleged abuse is simply not warranted.
See United States v. Harrison, 26 MJ 474, 476 (CMA 1988)
(post-trial speculation as to whether false statement was actually official
barred by plea of guilty to false official statement offense).
A second question raised by appellant is whether
Article 93 required the prosecution to show that he was acting in a supervisory
role when he maltreated the victim. The plain language of this statute
("subject to his orders") does not support appellants narrow construction
of this statute. See generally United States v. Solis,
46 MJ 31 (1997) (no statutory language sanctions exculpatory no doctrine).
Cf. United States v. Curry, supra. In any event, we
need not decide this legal question today.
Even accepting appellant´s narrow supervisory-relationship
approach to this codal provision, he does not prevail. Appellant admitted
that the alleged victim was "subject to [his] orders . . . as far as the
workplace is concerned." The record also shows that appellant was the "noncommissioned
officer-in-charge" of the maintenance section of 94th Maintenance
Company, 87th Support Battalion at Fort Stewart, Georgia, and
that the victim was one of his section chiefs. Finally, it shows that appellant
knowingly exploited confidential personnel information which came into
his civilian brothers possession as a result of appellant´s military
command position over the victim. Again, no further appellate consideration
of this claim is warranted. See United States v. Prater,
32 MJ 433, 437 (CMA 1991) (post-trial speculation on officiality of statement
not appropriate where guilty pleas preclude full development of record).
The decision of the United States Army Court
of Criminal Appeals is affirmed as to findings but set aside as to sentence.
The record of trial is returned to the Judge Advocate General of the Army
for remand to that court, which will consider whether appellant is within
the class of persons who are entitled to relief under United States
v. Gorski, 47 MJ 370 (1997). If the court concludes that appellant
is within such class, the court will refer the case to the Judge Advocate
general for a determination as to the amount of relief that is warranted,
if any.
FOOTNOTES:
1



SPECIFICATION: In that Sergeant
First Class Charles G. Knight, U.S. Army, at Fort Stewart, Georgia, on
divers occasions from about 14 January 1996 to about 1 April 1996, did
maltreat Sergeant First Class Joseph W. Farrar, a person subject to his
orders, by unlawfully creating debts in Sergeant First Class Farrars
name without his consent and then failing to pay said debts, thereby causing
Sergeant First Class Farrar public embarrassment. (Emphasis added.)



2 Our resolution
of Issues I and II in the Governments favor requires that, in accordance
with our current practice, this case be remanded to the Court of Criminal
Appeals for reconsideration in light of United States v. Messner,
No. 98-1013, ___MJ __ (Daily Journal April 29, 1999).
 
 
EVERETT, Senior Judge (concurring in the result):
I suspect that the factual situation reflected
in this record was not anticipated by Congress when it enacted Article
93 of the Uniform Code. Nevertheless, because the providence inquiry made
clear that appellant caused financial harm and embarrassment to his victim
by knowingly exploiting for appellants own gain confidential personnel
information which had come into his possession by reason of his immediate
military command position over his victim, I conclude that the requirements
of Article 93 have been met and the conviction should be affirmed.

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