71 M.J. 709
A.C.C.A.2012Background
- Appellant, a sergeant first class, was convicted by general court-martial of attempted larceny and larceny under the UCMJ.
- BOCAT supply sergeant in Iraq misused the military supply system to requisition non-mission-essential property worth about $385,000.
- Property obtained included high-value power tools; roughly $67,000 recovered at appellant’s North Carolina home; about $12,000 recovered at co-accused LTC Lethers’ home.
- CID investigation triggered by a tip led to discovery of improperly requisitioned tools and subsequent searches of SSAs at Camp Liberty and FOB Prosperity.
- Trial included extensive self-serving testimony by Pleasant; co-accused LTC Lethers was tried separately and received a different sentence.
- The convening authority reduced the original sentence after trial; this Court reviews under Article 66, UCMJ.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal and factual sufficiency of larceny conviction | Government argued sufficient evidence supported larceny. | Pleasant contends insufficiency; challenged credibility of government case. | Guilty for larceny affirmed; evidence legally and factually sufficient. |
| Legal and factual sufficiency of attempted larceny | Government linked property to attempted larceny in Iraq. | Evidence failed to tie Pleasant to post-deployment property; no orders proved. | Attempted larceny facts not sufficient; findings and specification set aside. |
| Sentence reassessment and appropriateness after error | Sales/Moffeit authority supports reassessment; sentence may be reduced. | No relief warranted; error not prejudicial to overall sentence. | Reassessed without rehearing; sentence affirmed as appropriate. |
| Sentence disparity with co-accused LTC Lethers | Disparity between Pleasant and Lethers justified by differing records. | Disparity was too great and not rationally explained. | Disparity rational; supported by differing disciplinary histories and Mendacity considerations. |
| Mendacity instruction and its impact on sentencing | Mendacity evidence could inform rehabilitative potential. | Instruction properly conditioned; no undue punishment for false testimony. | Instruction proper and consistent with Edwards; used to assess rehabilitative potential. |
Key Cases Cited
- United States v. Gilchrist, 61 M.J. 785 (Army Ct. Crim. App. 2005) (standard for sufficiency review in Article 66(c) cases)
- Washington, 57 M.J. 394 (C.A.A.F. 2002) (admissible criteria for sufficiency review)
- Cisneros v. United States, 448 F.2d 298 (9th Cir. 1971) (truthfulness of defendant’s testimony may be evidence of guilt when credible)
- Williams, 390 F.3d 1319 (11th Cir. 2004) (defendant’s testimony bears special risk; may be substantive evidence of guilt when disbelieved)
- Edwards, 35 M.J. 351 (C.M.A. 1992) (mendacity evidence limited to rehabilitative potential in sentencing)
- Sales, 22 M.J. 305 (C.M.A. 1986) (allows reassessment of sentence when error is found without rehearing)
- Moffeit, 63 M.J. 40 (C.A.A.F. 2006) (guidance on when reassessment without rehearing is permissible)
- Lacy, 50 M.J. 286 (C.A.A.F. 1999) (disparate sentences must be highly disparate to warrant relief)
- Roach, 69 M.J. 17 (C.A.A.F. 2010) (framework for evaluating sentence disparity among closely related cases)
- Sothen, 54 M.J. 294 (C.A.A.F. 2001) (disparity analysis in sentence recension)