United States v. Peterson
201500340
N.M.C.C.A.Feb 28, 2017Background
- Appellant was convicted by a general court-martial of three specifications of making false official statements and one specification of larceny under Articles 107 and 121, UCMJ.
- Confinement for one year, $25,000 fine, and reprimand were adjudged by the convening authority.
- During 2010–2014, appellant claimed New York BAH/COLA based on dependents living in New York, but dependents primarily resided in Hampton Roads, Virginia.
- Appellant signed NAVPERS 1070/602 forms and Page 2 forms certifying New York residence for his dependents, which supported the alleged overpayments.
- Evidence included family living patterns, school records, neighbor testimony, a government housing expert, and an NY property manager’s observations.
- The panel reduced the larceny amount to $54,026.20 and addressed specific six-month periods where residency and payments overlapped.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal and factual sufficiency review | Appellant contends insufficiency. | Government asserts sufficiency beyond a reasonable doubt. | Sufficiency supported; conviction sustained. |
| Ambiguity of substituted verdict | Substitution creates ambiguity and review barriers. | No ambiguity; Rodriguez rule applies. | No ambiguity; permissible multiple-act verdict upheld. |
| Reasonable doubt instruction plain error | Instruction alleged to be improper without objection. | Instruction not plain error in light of McClour and precedent. | No plain error; instruction deemed acceptable. |
| Amount and dates of larceny | Evidence showed theft over $500 across divers occasions. | Lower amount substitutions do not negate multiple acts. | Conviction for larceny on divers occasions affirmed; amount ambiguity not fatal. |
| Impact of six-month period adjustments | Adjustments reflect ongoing misrepresentations across the period. | Adjustments properly reflect reduced amount for specific period. | Reaffirmed that the six-month adjustment does not defeat the conviction; affirmed sentence. |
Key Cases Cited
- United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003) (explains ambiguity when findings specify only some acts or diverging elements)
- United States v. Saxman, 69 M.J. 540 (N-M. Ct. Crim. App. 2010) (limits review where multiple acts are alleged under a single specification)
- United States v. Rodriguez, 66 M.J. 201 (C.A.A.F. 2008) (treads when proving ‘on divers occasions’; supports non-ambiguous multi-act verdict)
- United States v. Brown, 65 M.J. 356 (C.A.A.F. 2007) (clarifies review when multiple acts support a single verdict)
- United States v. Seider, 60 M.J. 36 (C.A.A.F. 2004) (advocates fact-specific interpretation of Walters-like scenarios)
- United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (sentence reassessment factors; governs appellate review of reassessment)