

   
   
   
   U.S. v. Russell



United States, Appellee
v.
David E. RUSSELL, Airman Basic
U.S. Air Force, Appellant
 
 
No. 98-0207/AF
Crim. App. No. 32662
 
 
United States Court of Appeals for the Armed
Forces
Argued November 17, 1998
Decided April 7, 1999
 
 
CRAWFORD, J., delivered the opinion of the
Court, in which
COX, C.J., and EFFRON, J., joined. SULLIVAN
and GIERKE, JJ.,
each filed a separate opinion concurring
in the result.
 
 
Counsel
For Appellant: Captain Teresa L. Davis
(argued); Colonel
Douglas H. Kohrt and Captain Thomas
R. Uiselt (on brief);
Major Kevin P. Koehler.
For Appellee: Captain Martin J. Hindel
(argued); Lieutenant Colonel Michael J. Breslin (on brief); Colonel
Brenda J. Hollis,
Lieutenant Colonel Anthony P. Dattilo,
Major
Ronald A. Rodgers,
and Captain Mitchel Neurock.
Military Judge: Hervey A. Hotchkiss
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
 
 
Opinion of the Court
Judge CRAWFORD delivered the opinion of the
Court.
Pursuant to his pleas, appellant was convicted
of dereliction of duty, false official statement, wrongful disposition
of military property, obstruction of justice, and larceny of military property
(8 specifications), in violation of Articles 92, 107, 108, 134, and 121,
Uniform Code of Military Justice, 10 USC §§ 892, 907, 908, 934,
and 921, respectively. Fourteen larceny specifications were withdrawn as
part of the pretrial agreement. The convening authority approved the sentence
of a dishonorable discharge, 24 months confinement, partial forfeitures,
and reduction to the lowest enlisted grade. The Court of Criminal Appeals
affirmed the findings and sentence in an unpublished opinion.
We specified the following issue:



WHETHER, AS A MATTER OF LAW, PROPERTY WHICH
APPELLANT PURCHASED WITH A GOVERNMENT CREDIT
CARD, WHICH PROPERTY WAS NEVER REQUESTED,
AUTHORIZED, USED, OR POSSESSED BY THE ARMED
FORCES, WAS "MILITARY PROPERTY," AND WHETHER
APPELLANTS RELATED PLEAS OF GUILTY TO
SPECIFICATIONS 5, 8, 9, AND 19 OF CHARGE I,
AND THE SPECIFICATION OF CHARGE IV WERE
PROVIDENT.



We hold that appellants pleas were provident.

FACTS
Appellant used a government Visa card to make
purchases when there was no requisition form. Some of these items he would
take to his workplace; others he would take directly from the civilian
source to his quarters, never intending them to be turned over to the Government.
During the providency inquiry, the judge asked
whether, and appellant admitted that each item was "military property."
Each of these inquiries was focused on the nature of the property and whether
the items purchased were items that "the Air Force had a use for, [or]
could have used" to operate its refrigeration systems.
The question in this case is whether these
items were legitimately military property, and if not, whether there is
substantial variation in the maximum punishment so as to have an impact
on the pleas. If the property stolen was not military property, the maximum
punishment would be reduced from 73½ years to 48 years. See
paras. 32e(1)(b) and 46e(1)(a)-(d), Part IV, Manual for Courts-Martial,
United States (1998 ed.).
The defense argues that appellants pleas were
improvident because the property he confessed to stealing and disposing
of was not "military property." The Government argues that the Air Force
gained constructive possession of the property at the time of the purchases.
Alternatively, the Government argues that, in any event, the pleas were
provident.

DISCUSSION
This Court has held on numerous occasions that
it will not set aside a guilty plea unless there is a "substantial basis"
in law and fact for questioning the plea. United States v. Prater,
32 MJ 433, 436 (1991).
Paragraph 32c(1), Part IV, Manual, supra,
defines military property as "all property, real or personal, owned, held,
or used by one of the armed forces of the United States." In this case,
appellant admitted that each item stolen was military property that was
used by the Air Force in its refrigeration systems. His answers are consistent
with our understanding of the meaning of that term. See United
States v. Dailey, 37 MJ 463, 464 (CMA 1993) (larceny of quarters allowance
is larceny of military property of the United States); United States
v. Hemingway, 36 MJ 349, 352 (CMA 1993) (theft of United States treasury
checks from the finance office constituted theft of military property because
"appropriated funds belonging to the United States Army  even if only
being held by the Army for immediate disbursement to any individual soldier
for duty travel  are within the meaning of military property of the United
States").
Thus, we hold that there is no substantial
evidence in the record that contradicts appellants responses to the military
judge concerning the character of the stolen items as military property.
We will not allow appellant to throw a penalty flag and prevail after he
has admitted on the record to each element of the charged offenses which
remain uncontradicted to date.
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
 
 
SULLIVAN, Judge (concurring in the result):
Article 121, Uniform Code of Military Justice,
10 USC § 921, prohibits the crime of larceny of property from its
owner. The property alleged to be stolen here was various items purchased
with a credit card made available by the Government to military personnel
for military duties. Paragraph 46e, Part IV, Manual for Courts-Martial,
United States, 1984 (1994 and 1995 eds.) provides for enhanced punishment
if the items stolen are "military property". However, failure
to satisfy this punishment enhancer in no way invalidates a plea of guilty
to larceny under Article 121.
In any event, I conclude that appellant admitted
that this punishment enhancer existed in his case, i.e., he stole
military property. Appellant admitted that he used a credit card issued
to him by the United States for the purpose of performing his military
duties. He also admitted that the items which he purchased were military
property, as a result of the manner in which they were purchased. As this
Court said in United States v. Simonds, 20 MJ 279, 280 (1985), "In
a general sense, all property purchased with federal funds and owned or
held by a service is military property." I think Simonds is controlling
in this case.
In addition, to the extent this is viewed as
a guilty plea issue, post-trial speculation concerning the use that may
or may not have been made of this property should not be countenanced.
I would affirm under United States v. Harrison, 26 MJ 474, 476 (CMA
1988) (post-trial speculation in guilty plea cases will not be countenanced).
Appellant admitted that it was military property and provided a factual
basis for his admission.
 
 
GIERKE, Judge (concurring in the result):
I agree with the result reached in the majority
opinion, but I write separately to set out my rationale for affirming the
decision of the court below.
The term "military property" under Article
121 was not defined in paragraph 46e(1), Part IV, Manual for Courts-Martial,
United States (1995 ed.), which was in effect at the time of appellants
offenses. The term was defined, however, in the discussion section of Article
108 in paragraph 32(c)(1). I agree with the majority that the definition
under Article 108 is applicable to Article 121.*
Although appellant admitted during the plea
inquiry that the property was "military property," his agreement with a
legal conclusion is not necessarily sufficient to establish a factual predicate
for his pleas. See United States v. Outhier, 45 MJ 326, 331
(1996) ("Mere conclusions of law recited by an accused are insufficient
to provide a factual basis for a guilty plea."). However, he also admitted
that he was an authorized purchasing agent for the Air Force, and that
he used a government credit card, thereby obligating the Air Force to pay
for the property. He admitted that the items purchased were items that
could be used by the Air Force to operate its refrigeration systems. He
admitted that the Air Force had actual possession of those items that he
took to his place of duty. The Government asserts, and I agree, that the
Air Force had constructive possession of those items that appellant took
to his home. See United States v. Simonds, 20 MJ 279, 280
(CMA 1985) ("In a general sense, all property purchased with federal funds
and owned or held by a service is military property.").
In my view, the foregoing facts are a sufficient
factual predicate for the pleas of guilty. See RCM 910(e), Manual
for Courts-Martial, United States (1998 ed.), and United States v. Davenport,
9 MJ 364, 367 (CMA 1980) (factual basis for plea required). Appellant made
no statements inconsistent with his pleas of guilty. See RCM 910(h)(2)
and United States v. Penister, 25 MJ 148 (CMA 1987) (statements
inconsistent with plea must be resolved or plea set aside.). Accordingly,
I join the majority in concluding that there is no "substantial basis"
for setting aside the guilty pleas. See United States v. Prater,
32 MJ 433, 436 (CMA 1991).
FOOTNOTE:
* These paragraphs
remain the same in the 1998 edition.
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