          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                             Staff Sergeant SAUL M. BOOKMAN
                                    United States Air Force

                                              ACM 38342

                                            31 March 2014

         Sentence adjudged 22 January 2013 by GCM convened at Buckley Air
         Force Base, Colorado. Military Judge: Christopher M. Schumann (sitting
         alone).

         Approved Sentence: Bad-conduct discharge, confinement for 8 months,
         and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Isaac C. Kennen.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Major Jason M. Kellhofer; and Gerald R. Bruce, Esquire.

                                                  Before

                                  ROAN, HELGET, and WEBER
                                    Appellate Military Judges

                    This opinion is subject to editorial correction before final release.

PER CURIAM:

       A general court-martial composed of a military judge sitting alone convicted the
appellant, in accordance with his pleas, of nine specifications of larceny, in violation of
Article 121, UCMJ, 10 U.S.C. § 921. The court sentenced the appellant to a bad-conduct
discharge, confinement for 8 months, and reduction to E-1. With the exception of
deferring and waiving the mandatory forfeitures, the convening authority approved the
adjudged sentence.

       Before this Court, the appellant raises three assignments of error: (1) Whether the
staff judge advocate’s recommendation (SJAR) contained plain and prejudicial error
because it inaccurately stated that the appellant “was convicted of having committed
60 different thefts over the course of a single year” and the appellant “pleaded guilty to
stealing more than $30,500,” when the appellant actually was convicted of, and pled
guilty to, committing only 41 thefts for a total amount of $15,797; (2) Whether
Specifications 2 and 4, 6 and 7, and 8 and 9 of the Charge are multiplicious; and
(3) Whether the sentence in this case is inappropriately severe. Finding no error that
materially prejudices a substantial right of the appellant, we affirm.

                                      Background

       In 2010, the appellant was assigned to the 320th Training Squadron (320 TRS) at
Lackland Air Force Base, Texas. While assigned there, he was also the President of the
320th TRS Booster Club, which was a private organization. As the President of the
Booster Club, the appellant exercised control over the Booster Club’s finances; had
access to the Booster Club debit card, checking account, and bank records; and managed
the Booster Club ledger for recording its transactions. The appellant was authorized to
make deposits and payments on behalf of the Booster Club.

        From approximately 5 April 2010 to 31 December 2010, on 41 separate occasions,
the appellant stole almost $15,800 from the 320th TRS Booster Club. In April 2010,
while on leave in Massachusetts, the appellant used the Booster Club debit card to
withdraw $302 cash from a local Automatic Teller Machine (ATM) to pay a friend for
baseball tickets. From 14 July 2010 to 5 August 2010, the appellant was on leave in
Arizona and Nevada. During this period, he used the debit card to make several cash
withdrawals from various ATMs. He used the money for his own personal use and
enjoyment, such as playing golf, paying for hotels, food and gas, and paying for gambling
at casinos in Las Vegas.

       From 5 November 2010 to 29 November 2010, the appellant used the Booster
Club debit card to purchase an airline ticket for a friend to accompany him to Arizona
and to withdraw cash for his own personal use. The appellant also used the Booster Club
checking account to write himself a check in the amount of $1,000. He annotated on the
check that it was for a charitable donation to the Fisher House, but instead he deposited
the check in his personal bank account to use for an upcoming trip to Arizona.

       From 1 December 2010 to 29 December 2010, the appellant used the Booster Club
debit card to make numerous cash withdrawals for his own personal use, to include
purchasing a suit for the squadron Christmas party, purchasing Christmas presents, and
purchasing tickets to a college bowl game.

      To conceal his misconduct from the Booster Club, the appellant falsified the
Booster Club ledger by entering what appeared to be legitimate transactions.




                                            2                                   ACM 38342
                                  Post-Trial Processing

     On 10 April 2013, the staff judge advocate (SJA) signed the Addendum to the
SJAR. In paragraph 4, the SJA erroneously stated:

       [The appellant] was convicted of having committed 60 different thefts over
       the course of a single year, while he was the president of his former
       squadron’s booster club. . . . In total, [the appellant] pleaded guilty to
       stealing more than $30,500 (Record of Trial, Volume 3, Prosecution
       Exhibit 1), which he used for his own personal benefit, to include personal
       purchases and funding trips to Las Vegas, Nevada.

(emphasis added).

        According to the stipulation of fact in this case, the parties agreed the appellant
committed only 41 thefts for a total amount of $15,797. Furthermore, in sentencing, the
trial counsel argued the same number of thefts and total amount stolen consistent with the
stipulation of fact. On appeal, the appellant asserts that as a result of the error in the
SJAR Addendum, we should reassess his sentence and decline to affirm the bad-conduct
discharge.

       To obtain relief based on an error in the SJAR or its Addendum, the appellant
must: (1) allege the error at the Court of Criminal Appeals; (2) allege prejudice resulting
from the error; and (3) show what he would do to resolve the error if given the
opportunity. See United States v. Wheelus, 49 M.J. 283, 288 (C.A.A.F. 1998).
Considering the highly discretionary nature of the convening authority’s action, “there is
material prejudice to the substantial rights of an appellant if there is an error and the
appellant ‘makes some colorable showing of possible prejudice.’” Id. at 289
(quoting United States v. Chatman, 46 M.J. 321, 323-24) (C.A.A.F. 1997)). “If the
appellant makes such a showing, the Court of Criminal Appeals must either provide
meaningful relief or return the case to the Judge Advocate General concerned for a
remand to a convening authority for a new posttrial recommendation and action.” Id.

      Pursuant to Rule for Courts-Martial 1106(d)(6), “[i]n case of error in the
recommendation . . . appropriate corrective action shall be taken by appellate authorities
without returning the case for further action by a convening authority.”

       In his clemency request, the appellant requested the convening authority reduce
his confinement by two months and enter him into the Return to Duty Program (RTDP).
In support of his request, the appellant submitted a recommendation from the military
judge, his commander who preferred the charge in this case, plus eight other letters.




                                             3                                   ACM 38342
       On appeal, the appellant asserts he was materially prejudiced by the errors in the
SJAR Addendum because they grossly exaggerated his culpability, thereby hindering the
multiple recommendations that he be entered into the RTDP. The appellant claims the
only meaningful relief is for this Court not to affirm his punitive discharge. We disagree.

       Despite the errors in the SJAR Addendum, there is significant aggravation
evidence in this case. The 41 thefts occurred over a one-year period; the appellant was
the President of the 320th Booster Club and intentionally concealed the thefts in the
Booster Club ledger, including falsely claiming some of the money had been used for a
charitable donation; and the appellant used the stolen funds for his personal use, to
include funding trips to Las Vegas, Nevada. Additionally, the appellant underwent a
psycho-social evaluation as required for the RTDP application, and the evaluating
provider, Dr. DB, recommended against the appellant’s admission into the RTDP.

       After considering the entire record of trial, we find the appellant has not made a
colorable showing of possible prejudice. We are convinced the convening authority
would have taken the same action had he been advised of the correct number of thefts and
total amount stolen by the appellant.

                                         Multiplicity

       For the first time on appeal, the appellant asserts that Specifications 2 and 4,
6 and 7, and 8 and 9 of the Charge are multiplicious.

        This Court reviews multiplicity issues de novo. See United States v. Anderson,
68 M.J. 378, 385 (C.A.A.F. 2010). Multiplicity in violation of the Double Jeopardy
Clause of the Constitution 1 occurs when “‘a court, contrary to the intent of Congress,
imposes multiple convictions and punishments under different statutes for the same act or
course of conduct.’” Id. (quoting United States v. Roderick, 62 M.J. 425, 431
(C.A.A.F. 2006)) (emphasis omitted). Accordingly, an accused may not be convicted and
punished for two offenses where one is necessarily included in the other, absent
congressional intent to permit separate punishments. See United States v. Teters,
37 M.J. 370, 376 (C.M.A. 1993). Where legislative intent is not expressed in the statute
or its legislative history, “it can also be presumed or inferred based on the elements of the
violated statutes and their relationship to each other. Id. at 376-77. The Supreme Court
laid out a “separate elements test” for analyzing multiplicity issues: “The applicable rule
is that, where the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which the other does not.” Blockburger
v. United States, 284 U.S. 299, 304 (1932). Accordingly, multiple convictions and
punishments are permitted for a distinct act if the two charges each have at least one

1
    U.S. CONST. amend. V.


                                             4                                    ACM 38342
separate statutory element from each other. Absent a timely motion at trial, an
unconditional guilty plea waives a multiplicity claim on appeal absent plain error.
See United States v. Hudson, 59 M.J. 357, 358 (C.A.A.F. 2004), overruled in part on
other grounds by United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010).

       Article 121, UCMJ, Larceny, contains the following elements:

       (a) That the accused wrongfully took, obtained, or withheld certain property
       from the possession of the owner or of any other person;

       (b) That the property belonged to a certain person;

       (c) That the property was of a certain value, or of some value; and

       (d) That the taking, obtaining, or withholding by the accused was with the
       intent permanently to deprive or defraud another person of the use and
       benefit of the property or permanently to appropriate the property for the
       use of the accused or for any person other than the owner.

Manual for Courts-Martial, United States (MCM), Part IV, ¶ 46.b.(1) (2012 ed.).

       In this case, all of the transactions are specifically described in detail in the
stipulation of fact. The main difference between Specifications 2 and 4, 6 and 7, and
8 and 9 is that Specifications 2, 6 and 8 allege the theft of cash in an amount “equal to or
less than $500,” while Specifications 4, 7 and 9 allege the theft of cash “of a value of
more than $500. This is due to the maximum punishment allowed. For larceny of non-
military property of a value of $500 or less, the maximum punishment is a bad-conduct
discharge, forfeiture of all pay and allowances, and confinement for 6 months. For
larceny of non-military property of a value of more than $500, the maximum authorized
punishment is a dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years. MCM, Part IV, ¶ 46.e.(1)(b), (d).

       We find under the circumstances of this case, the said specifications are not
multiplicious. All of these specifications involve more than one theft that occurred on
divers occasions and the alleged timeframe for each specification is different. For
Specifications 2 and 4, the larcenies under Specification 2 occurred on separate dates, at
separate locations, and for different amounts than the larcenies that occurred under
Specification 4. For Specifications 6 and 7, the larcenies under Specification 6 occurred
on different dates and for different amounts than the larcenies under Specification 7. For
Specifications 8 and 9, most of the larcenies under Specification 8 occurred on different
dates and for different amounts than the larcenies under Specification 9. Specifications
8 and 9 each allege that a larceny occurred on 15 December 2010, however, the amounts
and locations are different.


                                             5                                    ACM 38342
       Accordingly, the appellant has failed to show that the specifications were
multiplicious, and no error, plain or otherwise, occurred in this case.

                                      Sentence Severity

      The appellant asserts his sentence consisting of a bad-conduct discharge and
confinement for eight months is inappropriately severe. We disagree.

       This Court reviews sentence appropriateness de novo. See United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only . . . the sentence or such part or
amount of the sentence, as [we find] correct in law and fact and determine[], on the basis
of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). We
assess sentence appropriateness by considering the particular appellant, the nature and
seriousness of the offenses, the appellant’s record of service, and all matters contained in
the record of trial. See United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982); United
States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d, 65 M.J. 35
(C.A.A.F. 2007). We have a great deal of discretion in determining whether a particular
sentence is appropriate, but are not authorized to engage in exercises of clemency.
See United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010); United States v. Healy,
26 M.J. 394, 395-96 (C.M.A. 1988).

        The appellant argues that the adjudged and approved sentence shows the impact of
the alleged multiplication of charges and errors in the SJAR, and the failure to consider
the appellant’s lack of any prior offenses, his outstanding duty performance, his combat
service, and the fact he pled guilty.

       The maximum punishment in this case was a dishonorable discharge, confinement
for 18 years, forfeiture of all pay and allowances, and reduction to E-1. A pretrial
agreement entered into between the parties capped confinement at 20 months. During its
sentencing argument, the Government argued for a dishonorable discharge and
confinement for 24 months. In response, the trial defense counsel recommended
confinement for 8 months and, in exchange for no additional confinement, a bad-conduct
discharge. During his argument, trial defense counsel also highlighted the appellant’s
strong duty performance, his rehabilitative potential, and his guilty plea. The military
judge must have considered these matters because he concurred with the trial defense
counsel’s recommendation and sentenced the appellant to a bad-conduct discharge and
confinement for 8 months. Additionally, the military judge submitted a post-trial
recommendation for the appellant to be offered an opportunity to participate in the
RTDP, which indicates he considered the appellant’s mitigating factors. The military
judge stated, “While I obviously recognize the serious nature of the misconduct
[the appellant] pled guilty to, his plea of guilty coupled with his sincere expression of



                                             6                                    ACM 38342
remorse and the absence of any other misconduct in an otherwise commendable career
warrants an opportunity for participation in the program.” 2

       We have examined the entire record of trial and all of the circumstances in this
case and find that the appellant’s approved sentence correctly reflects the gravity of the
41 larcenies he committed and is not inappropriately severe.

                                               Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are

                                              AFFIRMED.


                FOR THE COURT


                LAQUITTA J. SMITH
                Appellate Paralegal Specialist




2
  After announcing the sentence, the military judge also recommended the convening authority waive mandatory
forfeitures to be paid to the appellant’s dependents.


                                                     7                                          ACM 38342
