UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          COOK, CAMPANELLA, and HAIGHT
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                  Private First Class SAMUEL A. MEIXUEIRO
                          United States Army, Appellant

                                   ARMY 20120492

               Headquarters, I Corps (Rear) (Provisional) (convened)
                          Headquarters, I Corps (action)
                   David L. Conn, Military Judge (arraignment)
                    David H. Robertson, Military Judge (trial)
                  Colonel Kurt A. Didier, Staff Judge Advocate

For Appellant: Major Jacob D. Bashore, JA; Captain Brian D. Andes, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan, JA (on brief).

                                  26 December 2013

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                              OPINION OF THE COURT
                              ---------------------------------


CAMPANELLA, Judge:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of one specification of attempted larceny, one specification of
absence without leave, one specification of larceny, two specifications of making
checks with the intent to defraud, and one specification of making and uttering
worthless checks by dishonorably failing to mainta in sufficient funds, in violation of
Articles 80, 86, 121, 123a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§
880, 886, 921, 923a, 934 (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge, confinement for eighteen months, forfeiture of
all pay and allowances, and reduction to the grade of E-1. Pursuant to a pretrial
agreement, the convening authority approved only so much of the sentence as
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provided for a bad-conduct discharge, confinement for eleven months, forfeiture of
all pay and allowances, and reduction to the grade of E-1. 1

       This case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises three assignments of error. One assignment of error, which merits
discussion, but no relief, asserts that the military judge abused his discretion by
treating each insufficiently funded check charged under a “mega-specification” of
Article 134, UCMJ, as separate offenses for purposes of calculating the maximum
sentence. The remaining assignments of error and those matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) are
without merit.

                                   BACKGROUND

       While stationed at Joint Base Lewis-McChord, appellant opened a checking
account with America’s Credit Union (ACU) and established automatic deposit for
his military paycheck to that account . He subsequently opened another bank account
at the Armed Forces Bank (AFB) and re-directed his military pay to be automatically
deposited into his AFB account instead. Despite depleting funds in his ACU
account, appellant continued to write checks against it. From 13 September 2007 to
5 December 2007, appellant wrote forty-three personal checks against his ACU
account, totaling $7,740.31. These checks were honored by ACU despite the zero
balance in appellant’s account.

       During the providence inquiry and in the stipulation of fact, a ppellant
admitted that he knew there was no money in the account to cover the forty-three
checks he wrote against the ACU account. Appellant further admitted his ACU debit
card stopped working before 13 September 2007 because there was no money in his
ACU checking account, and he received at least sixteen overdraft notices from ACU
prior to 14 November 2007. He also admitted he wrote checks against the depleted
account because he wanted money to support his gambling habit.

       These forty-three personal checks formed the basis for the Specification of
Charge I, making and uttering worthless checks by dishonorably failing to maintain
sufficient funds in his ACU account, a violation of Article 134, UCMJ. The checks
were grouped into one specification, but each negotiated check was separately
identifiable by check date, check number, amount, and payee. Thus, rather than
alleging a continuing course of conduct, the specification describe s forty-three




1
 Appellant was credited with one day of confinement against his sentence to
confinement.



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specific individual offenses. 2 This practice results in what is commonly referred to
as a “mega-specification.”

                               LAW AND DISCUSSION

       Appellant contends the maximum punishment agreed upon by the military
judge, government and defense prior to proceeding with the court -martial and during
the court-martial was incorrect. The appropriate maximum punishment is a question
of law which we review de novo. United States v. Beaty, 70 M.J. 39, 41 (C.A.A.F.
2011); United States v. Inabinette, 66 M.J. 320, 321 (C.A.A.F. 2007). Although we
“review a military judge’s sentencing determination under an abuse of discretion
standard, where a military judge’s decision was in fluenced by an erroneous view of
the law, that decision constitutes an abuse of discretion.” Beaty, 70 M.J. at 41
(internal citation omitted).




2
 On 20 December 2007, the Army Criminal Investigation Command (CID) brought
appellant in for questioning regarding the forty-three checks referenced in the
Specification of Charge I. Appellant was “informed” by CID that his ACU account
had been overdrawn and closed. On 24 and 26 December 2007, appellant wrote two
more checks from his closed ACU account totaling $425.75. Th ese two checks
formed the basis for Specification 1 of Charge II, alleging a violation of Article
123a (a mega-specification). On 4 December 2007, appellant opened another
checking account with USAA Bank using a worthless deposit from his depleted ACU
checking account. After the ACU check was r eturned non-payable due to
insufficient funds, appellant deposited $741.90 into his USAA account , bringing it
into good standing. From 17 to 20 December 2007, he made fraudulent electronic
deposits from his closed ACU account into the original USAA account as well as
nine newly-opened USAA savings and checking accounts. Within minutes of
opening the nine new USAA accounts and submitting fraudulent electronic deposits
from the closed ACU account, appellant transferred all the available funds from the
new USAA accounts into the original USAA checking account. Appellant then
effectuated forty-seven debit transactions totaling $3,399.78 via his original USAA
account. This formed the basis for the Specification of Charge III, a violation of
Article 121, UCMJ. On 22 and 23 December 2007, appellant wrote three additional
bad checks from the original USAA account which had been previously depleted of
funds. This formed the basis for Specification 2 (also a mega-specification) of
Charge II, a violation Article 123a, UCMJ. Appellant’s original USAA account was
frozen on 20 December 2007. From 4 December 2007 to 2 January 2008, appellant
made several attempts to withdraw money from his USAA account. These acts
formed the basis for the Specification of Charge IV; a violation of Article 80,
UCMJ, by attempting to steal additional funds from USAA Bank.



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       At the beginning of the court-martial, the military judge discussed the
maximum punishment calculation with counsel on the record after previously
holding a Rule for Courts-Martial [hereinafter R.C.M.] 802 session wherein this
topic was discussed. The military judge state d in pertinent part:

             [T]here’s a disagreement between government and
             defense; defense believing the maximum punishment
             initially was somewhere in the four year range;
             government coming to a twenty-six year, six month
             maximum confinement. I addressed with the defense the
             case of United States v. Mincey . . . and then provided the
             case law to the defense for those mega-specifications . . . .
             Defense, what is your position? 3

      Defense counsel then conceded that the government’s twenty-six and a half
year calculation of maximum confinement punishment was correct.

       Appellant now claims that the military judge erred by treating each
insufficiently funded check charged under the “mega-specification” of Charge I as a
separate offense for sentencing. Appellant contends the maximum sentence for the
forty-three worthless checks charged under Article 134, UCMJ, should be a period of
confinement of only six months, rather than the twenty-one and a half years of
confinement which results from considering each check separately.

     While appellant recognizes that the Court of Appeals for the Armed Forces
(CAAF) has held that bad checks charged under Article 123a, UCMJ, may be
separately considered for sentencing by totaling what confinement each would have
carried by itself to determine the maximum period of confinement , United States v.
Mincey, 42 M.J. 376, 378 (C.A.A.F. 1995), he contends that Mincey is limited to
Article 123a, UCMJ, and its holding cannot be extended to bad checks charged under
Article 134, UCMJ. We disagree.




3
 We note that the defense counsel’s assertion of maximum confinement “in the four
year range” appears to be premised initially on his assumption that neither Charge I
and its specification, (Article 134, UCMJ), nor Charge II, Specifications 1 and 2,
(Article 123a, UCMJ), should be counted as a single offense for purposes of
maximum sentence calculation as opposed to a maximum treating each check within
the specification as a separate offense. In other words, the defense counsel initially
appears to have also believed the two specifications of Arti cle 123a, referencing five
separate checks, should only be counted as two occasions for maximum sentence
purposes.



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    Airman Mincey was charged with two “mega-specifications” under Article 123a,
UCMJ, alleging a total of eighteen bad checks. Drawing on R.C.M.
1003(c)(1)(A)(i), the CAAF held that when pleaded in this manner, “the maximum
punishment is calculated by the number and amount of the checks as if they had been
charged separately, regardless whether the Government correctly pleads only one
offense in each specification or whether the Government joins them in a single
specification . . . .” Id. The court in Mincey did not restrict its holding to Article
123a, UCMJ, check offenses. The Mincey court stated “[R.C.M.] 1003(c)(1)(A)(i)
authorizes punishment ‘for each separate offense, not for each specification.’” Id.
(emphasis in original). The court in Mincey looked to the offenses an accused has
been convicted of to determine the maximum punishment. Notwithstanding the
joinder of multiple instances under two specifications of the charge, Mincey was
convicted of seventeen offenses of uttering bad checks, in violation of Article 123a ,
UCMJ. Id. The CAAF went on to state, “we now only hold that in bad-check cases,
the maximum punishment is calculated by the number and amount of the checks as if
they had been charged separately . . . .” Id. (emphasis added). The Mincey analysis
has been extended to other check cases such as forgery, reasoning that “a forged
check qualifies as a ‘bad check.’” United States v. Towery, 47 M.J. 514, 515 (A.F.
Ct. Crim. App. 1997), petition denied, 48 M.J. 414 (C.A.A.F. 1997). In Towery, the
Air Force Court of Criminal Appeals held that “in cases where multiple, discrete
instances of check forgery are pleaded (without objection) in one specification, the
maximum punishment is calculated as if they had been charged separately.” Id.

       While appellant argues that Mincey does not extend to bad check offenses
under Article 134, UCMJ, we do not interpret Mincey so narrowly, particularly in
light of the specifics of this case. Both Article 134 and Article 123a, UCMJ,
offenses require that a check be uttered and that there be insufficient funds in the
corresponding account. The key discernible difference between the two offenses is
that Article 134, UCMJ, requires the failure to maintain sufficient funds in one’s
account be dishonorable, whereas Article 123a, UCMJ, requires an intent to defraud
or deceive. Manual for Courts-Martial (2012 ed.), pt. IV, ¶¶ 49.b, 68.c.

        In crafting charges against an accused, the government has the option of
charging each bad check written as a separate Article 134, UCMJ, offense, or it may
promote judicial economy by streamlining charge sheets and trial proceedings by
including all checks in a single Article 134, UCMJ, “mega-specification.” The
government’s charging decision in these cases does not lessen the sentencing
exposure for the accused given the nature of individual instances of misconduct. If
it chose to do so, the government could have pleaded and proven separate
specifications. In a case involving an Article 134, UCMJ , offense, each instance of
check uttering may be counted separately for sentencing, despite being captured in a
single specification. We perceive no meaningful distinction in the Mincey holding
as it relates to charging and maximum punishment practices related to worthless
checks charged under Article 134, UCMJ. The aggregation of the separate bad-



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checks was an appropriate charging decision and, in this case, the military judge
correctly held that each check could be considered separately in determining the
maximum possible confinement for appellant ’s Article 134, UCMJ, violation.

       Assuming, however, that the military judge erred in applying Mincey to bad-
check offenses charged under Article 134, UCMJ, we now examine the appellant’s
assertion that he was “improvident” because he mistakenly believed the maximum
punishment was twenty-six and a half years. We find this assertion is incongruous
with appellant’s course of conduct and wholly lacks merit.

       A guilty plea “may be improvident because it is ‘predicated upon a substantial
misunderstanding on the accused’s part of the maximum punishment to which he is
subject.’” United States v. Poole, 26 M.J. 272, 274 (C.M.A. 1988) (quoting United
States v. Windham, 15 U.S.C.M.A. 523, 525, 36 C.M.R. 21, 23 (1965)). The United
States Court of Military Appeals indicated in United States v. Harden that the
analysis of an accused’s misunderstanding in that regard may “produce different
results in seemingly similar cases . . . .” 1 M.J. 258, 260 (C.M.A. 1976). Our court
found in United States v. Walls, 3 M.J. 882, 885 (A.C.M.R. 1977) that factors to be
considered include: (1) the quality and quantum of the pretrial evidence dictated the
accused to take a given course of action; (2) the degree of error in the
misunderstanding of the maximum punishment; (3) the aspect of the maximum
punishment that was misunderstood; (4) the relationship between the terms of the
negotiated agreement and the correct maximum punishment; (5) whether the
agreement struck was realistic in light of the totality of circumstances of the case;
and finally, (6) the actual impact of the misunderstood element of the plea in light of
the actual sentence imposed at trial.

       Applying the foregoing principles to the facts of this case, we find that the
pretrial evidence, from a practical viewpoint, dictated that it would be in the best
interests of this appellant to negotiate a plea in an effort to gain the most acceptabl e
terms possible under the circumstances. We further find that is precisely what
occurred. Given the totality of the circumstances in this case, the pretrial agreement
was both reasonable and realistic. The evidence of appellant’s acts in this case was
remarkable. The record clearly demonstrates the appellant was willing to submit a
pretrial agreement for an eleven month confinement cap while under the notion that
the maximum confinement was four years versus five and a half years . 4



4
  If Mincey were to only apply to Article 123a, UCMJ, offenses and not Article 134,
UCMJ, offenses, (making and uttering worthless checks by dishonorably failing to
maintain sufficient funds), the maximum confinement exposure in this case wou ld be
five and a half years confinement—not four. In that light, appellant’s confinement
cap becomes even more beneficial.



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      The charges were referred to a general court-martial on 25 February 2012.
The appellant’s offer to plead was submitted on 23 March 2012. The convening

authority signed the agreement on 2 April 2012. The appellant was arraigned on 16
April 2012 by Judge Conn. Judge Conn was subsequently replaced by Judge
Robertson. At the beginning of the court-martial on 15 May 2012, Judge Robertson
stated:

             [I]n a previous 802 session with counsel for both sides
             present prior to trial today . . . the issue of what is the
             maximum punishment was also discussed. There’s a
             disagreement between government and defense; defense
             believing that the maximum punishment was somewhere in
             the four year range; government coming to a twenty-six
             year six month maximum. I addressed with the defense
             the case of United States v. Mincey . . . and then provided
             the case law to defense for those mega-specs . . . .

(emphasis added).

       Based on the record of trial, it is clear to this court that appellant believed he
was facing a maximum of only four years confinement versus twenty-six and half
years at the time he submitted the deal to the convening authority . This leads us to
the unavoidable conclusion that appellant was indeed provident even if the military
judge erred in his calculations because appellant was willing to submit a deal that
included an eleven-month confinement ceiling believing the maximum was only “in
the four year range.”

       Next we turn to the sentence. Even if we assume error under the
circumstances, we discern no prejudice to the appellant in the military judge’s
calculation of the maximum punishment. We note appellant freely admitted the
numerous occasions he uttered bad checks by dishonorably failing to keep money in
his account. The providence inquiry and the stipulation of fact reveal the brazen
nature of his fraudulent course of conduct, even while under criminal i nvestigation.
Additionally, appellant’s defense counsel argued for the judge to impose eighteen
months confinement and adjudge no punitive disc harge.

      We are confident that based on the entire record a nd the relative severity of
appellant’s course of conduct, the military judge, sitting alone as a general court-
martial, would have imposed the same sentence—including at least eighteen months
confinement—regardless of the difference between the maximum sentence to
confinement we have embraced versus that which appellant urge s us to adopt.




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                                   CONCLUSION

     On consideration of the entire record, we hold the findings of guilty and
sentence as approved by the convening authority correct in law and fact.
Accordingly, the findings of guilty and the sentence are AFFIRMED.

      Senior Judge COOK and Judge HAIGHT concur.




                                                  FOR THE COURT:



                                                  ANTHONY O. POTTINGER
                                                  Chief Deputy Clerk of Court




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