United States v. Aleman

STATES, Appellee, UNITED ALEMAN, Private, U.S.

Erick

Army, Appellant.

No. 05-0288.

Crim.App. No. 20030240. Appeals

U.S. Court Forces.

the Armed

Argued Nov. 20, 2006.

Decided Jan. J.,

EFFRON, opinion of the delivered the GIERKE, C.J., Court, and BAKER in which CRAWFORD, ERDMANN, JJ., joined. and J., opinion. dissenting a filed Appellant: Captain Edward Bahdi For Kirsten V.C. (argued); Lieutenant Colonel Park, Brunson, Captain Major Sean S. (on brief); Kuhfahl, A. Jr. Colonel Charles II, Cremin, Phelps John T. Mark Colonel Mark Tellitocci. and Lieutenant Colonel D. Appellee: Captain Mark McMann For Salata, T. Lieuten- (argued); Colonel Steven Gallagher, Cap- A. Theresa ant Colonel (on brief); Wiggers Captain E. tain Edward Michael Friess. opinion

Judge EFFRON delivered the Court. composed of a general

At a court-martial alone, sitting Appellant was convicted, pleas, with his in accordance willfully larceny, conspiracy commit suffer- (two specifi- ing the sale cations), housebreaking, violation Uniform Code Articles (UCMJ), §§ Military 10 U.S.C. Justice (2000), adjudged respectively. The included bad-con- approved months, for six discharge, confinement duct allowances, pay forfeiture all “significant prosecution of and re because the must grade. duction to prove the lowest enlisted The a duty duty.” and the failure do to the Army Ap 27-9, United States Court Criminal Dep’t Army, of of the Pamphlet Legal peals findings Services, affirmed the in Military Judges’ Benchbook ch. unpublished an opinion. v. para. United States 3-32-3 Aleman, (A.Ct.Crim. No. ARMY 20030240 During trial, provideney inquiry the at the App. Jan. military judge Appellant advised of the ele- Appellant’s petition, granted

On we review of ments the offenses for which he was issue: advice, charged. In the course this the military judge defined “suffered” as follows: WHETHER THE MILITARY JUDGE ERRED IN ACCEPTING APPEL- you “Suffered” means or permitted allowed PLEA LANT’S OF GUILTY TO WILL- Suffering this occur. included the delib- FULLY SUFFERING THE SALE OF disregard erate violation or intentional (SPECIFICA- MILITARY PROPERTY specific regulation; some law or or the II) TIONS 1 AND 2 OF CHARGE service; or duty customary practice of the WHERE THERE WAS NO EVIDENCE or or personal reckless unwarranted use ADDUCED DURING THE PROVI- property by causing allowing or it to INQUIRY DENCE THAT APPELLANT weather, exposed remain unsecured HAD ANY INDEPENDENT DUTY TO guarded, or not permitting it be con- SAFEGUARD THE MILITARY PROP- sumed, wasted, injured, and on. It so QUESTION. ERTY IN by allowing could also include it be lost, damaged, destroyed, wrongfully or below, For the reasons set forth we con- disposed of. Appellant’s pleas clude that Charge 1 and improvident. II were conjunction In inquiry, with the

prosecution stipulation introduced a in fact Appellant admitted that he and Pri- I. BACKGROUND (PFC) “agreed First vate Class Edwards 108(3), UCMJ, provides Article for the tri- larceny.” commit the stipula- The by who, al of person court-martial without although tion further agree- stated that proper authority “willfully or through neglect express,” Appellant provided ment was “not lost, sold, wrong- suffers to damaged, assistance to “in his scheme” fully disposed of’ military property of by military equipment to steal and sell driv- context, the United In States. “suffers” ing pawnshops, various permit.” means “to allow or Manual for stores, loaning go PFC Edwards his car to Courts-Martial, IV, pt. para. keeping lookout while PFC Edwards stole 32.c.(2) (2005 (MCM). ed.) The MCM sets military equipment, helping PFC Ed- forth five elements of the offense: carry equipment wards into (1) property That certain ... was ... sold Through car and into one of the stores. (cid:127) (cid:127) (cid:127) J stipulation, Appellant admitted that he knew (2) property That the proper- property ty States; of the United authority that PFC Edwards did have (3) by That ... sale ... was suffered permission to take it. accused, authority, proper without inquiry, Appellant confirmed through duty by a certain omission of veracity fact. He accused; that he and PFC added Edwards “didn’t (4) That the negli- omission was willful or expressed agreement, have an [sic] but we gent; and understanding had I gave him a ride (5) property That was of a certain post day.” Appellant provided After value---- concerning further details role in his suffer- 32.b.(3). IV, para. ing Pt. The equipment, reference the sale judge in the third Appellant “omission” and fourth elements reminded of the definition of offense, lacks if element Appellant and asked he believed “suffered” by requisite allow- factual basis. the sale of the he suffered ing Appellant it answered to be sold. contends The Government also elicited affirmative. Appellant’s statements appeal testimony regarding the val- from his omis stipulation fact —that acts and of nature of property, ue of the the intentional providency wrongful satisfy the sions were — acts, of author- permission his absence the respect to nature of his requirement with the acts, military of ity for his the status the rely duty. upon Although appropriate it is property. a factual basis stipulations of fact establish see, v. guilty plea, a States

for United II. DISCUSSION (C.A.A.F.1995), Sweet, 42 the Appellant’s stipula particular in statements guilty, accepting plea a Before of recognize the existence of tion of fact do not inquiry conduct an of must safeguard military duty property. a there is a accused determine whether passages The of the relevant for plea factual basis and whether the fact state: plea and it accused understands the enters PFC Edwards had no The accused knew McCrimmon, voluntarily. United States authority when he made the sales. The (C.A.A.F.2004); United 60 M.J. from stop accused failed to C.M.R. military selling equipment, and fur- (R.C.M.) (1969); for Rule Courts-Martial transport PFC Ed- nished the vehicle to 910(c)-(e). every The must admit accused it wards and the stolen so could which element the offense to the accused The that his omis- be sold. accused knew 910(e) pleading guilty. is R.C.M. Discussion. wrongfid. sion was assessing for Under our standard of review rejected providency, guilty plea “a will be These statements do not reflect an under- only a where record trial shows sub standing stop PFC Ed- that the failure questioning stantial basis law and fact for wrongful duty was of a wards because plea.” Harris, E.g., 61 protect property only general a belief — (C.A.A.F.2005) (citations omit wrongful. that the failure was In the ab- ted). Appellant guilty plea contends that his any duty, further discussion of a sence suffering each two offenses of these statements are insufficient to establish military property improvident sale of by predicate required the factual Care inquiry not a because the did establish factu progeny. its al basis for the third element —that there suggests The that if we con- Government duty by was a “certain the ac omission deficient, inquiry clude that the we can MCM, 32.b.(3)(c). IV, pt. para. cused.” nonetheless sustain conviction. providence inquiry, military Citing Epps, United States v. M.J. 319 (C.M.A.1987), judge provided the concern- contends that advice the Government ing “duty” inquiry a element: “The third element is sufficient sustain by you closely without related is that sale was suffered conviction for the authority military proper through selling property, a mission a crime for which [sic] shows, duty your part.” duty” no on As the record there is “omission of element. See 108(1), UCMJ; MCM, IV, acknowledges, pt. para. and the Government there Article 32.b.(l). acknowledges any duty on the The Government that was no further discussion 108(1) part Appellant during providence requires showing in- Article a quiry. judge did not elicit accused sold the but maintains through testimony any duty in this case Appellant regarding from element satisfied theory. safeguard abetting may property, aiding he had to We decline have duty. apply Epps a because the Appellant did articulate such case any judge as a by Appellant Appellant did not to such Without an admission advise establishing Appellant an un- theory, nor did articulate other evidence record derstanding theory. offense). guilty plea such closely held related Redlinski, 58 M.J. 119 There is not a “substantial basis” in law or (C.A.A.F.2003). Appellant’s plea per- to the fact to set aside the in this case. United improvident, Prater, (C.M.A. tinent offenses is and those States v. 32 M.J. must set aside.1 principal admitted he was a wrongful sale of property. Appellant contends that he is also entitled Thus, Appellant’s certainly admissions would to a rehearing. Under the circum- encompass “closely related” offense of stances of this proceedings further on suffering the of military property. sale the sentence are not warranted. The re- maining charges specifications, scenario, arose out of the same factual are FACTS by not affected setting our action aside the pleas, Appellant Pursuant to his con- was Charge for conviction II. In judge-alone this victed of the offenses: proceeding, we are confident that Specification of Charge conspiracy for specifications conviction 1 2 I— and (PFC) with Private First Class Christo- Charge II did not have a influ- “substantial pher D. govern- Edwards to steal TA-50 ence” on the sentence in this case. United equipment mental and “in order to effect Huhn, 493, (C.A.A.F.

States v. 54 M.J. 494 object conspiracy ... did know- 2001) States, (citing Kotteakos v. United 328 ingly furnish his to vehicle be used as a 750, 765, 1239, U.S. 66 S.Ct. 90 L.Ed. 1557 transport to the store in which the items (1946)); 59(a), UCMJ, Article 10 859 U.S.C. were sold.” (2000). 1, Specification Charge -“willfully II — [equipment] suffer TA-50 ... sold be III. DISPOSITION 24, Army July the Cove Store” on 2002. Specifications 2 Charge 1 and of II are set 2, Specification Charge “willfully II — dismissed, aside Charge and and II is set suffer TA-50 [equipment] ... to be sold to aside and In respects, dismissed. all other Army 27, the Rancier July Store” on the decision of Army the United States Court Appeals Criminal is affirmed. Specification Charge housebreaking. III — CRAWFORD, Judge (dissenting): inquiry providence on the respectfully I majority’s dissent from plea, Appellant he admitted entered into apply refusal this Court’s longstanding conspiracy with PFC Edwards to steal and See, precedent. Brown, (TA-50). military United States v. sell part As 389, (C.A.A.F.1996) (the 45 394 majority conspiracy, he assisted PFC Edwards rejected appellant’s argument challenging theft, with housebreaking and and on statute, 976, 27, 2002, § the anti-union July 10 U.S.C. drove one ground noted that up- off-post “[a]n alternative store where PFC Edwards sold the holding appellant’s II, 1) conviction be property (Charge specification would affirm the closely conviction for an July offense and on knowingly permitted related to the charged”); United part PFC Edwards to take his car to sell Epps, (C.M.A.1987)(up- 25 M.J. 319 property on (Charge stolen another date Brown, view, 1. The on employed dissent relies United States v. applicable 45 a standard that is not (C.A.A.F.1996), M.J. 389 providency Bradshaw direct review of under - -, 2398, Stumpf, (consti Compare Stumpf, U.S. S.Ct. law. 125 S.Ct. at 2405 Aleman, L. Ed.2d 143 prerequisites guilty tutional of a are satisfied 281, (C.A.A.F.2006) (Crawford, J„ explained 284-85 if has counsel the elements to the de Brown, dissenting). fendant), rejected a constitu with United States v. statute, 541, 247, challenge (1969) (under tional ato federal a con was 40 C.M.R. mili law, tested providency tary explanation so the issue did not counsel’s will relieve Stumpf, explain arise. 45 M.J. at responsibility 391-92. a collateral record). attack on a state court conviction under the elements on also R.C.M. 910(c)(1) Discussion; corpus 910(e) narrow constraints federal habeas re- R.C.M. Discussion. go to on used the car to stores sions. He II, After specification inquiry, TA-50. judge’s explanation of the Rancier to sell not think “additional the defense did stipula- the facts in Appellant admitted required regarding con- inquiry [the [was] tion were correct. — Stumpf, spiracy] offense.” Bradshaw he into Appellant admitted entered -, -, S.Ct. U.S. to commit agreement with PFC (2005) (“Where a is defendant L.Ed.2d agreement larceny, that continued counsel, by competent the court represented party to the Appellant was a exist while usually may rely counsel’s assurance on that as to performed in- act properly agreement. overt that the defendant has been II, driving specification the nature and elements was Charge formed of store, guilty.”)1 charge pleading Army to which he is as to Edwards to Cove II, furnishing his Charge specification of the stolen Appellant knew value could sold. property so stolen be vehicle 2; in alleged 1 and done, one an act When causes fact, specification he said the value as to sale, guilty as if he person that as ease the $1,200. sold the After PFC Edwards that act himself. carried out Rancier, he battle property at received some and about dress uniforms $200. disturbing refused It is Court has allowing means admitted “suffered” follow, prece- ignored, Supreme Court or “wrongfully disposed of or to be construing or when similar statutes dent sold.” rules, rights. interpreting constitutional stipulated facts: He also 277, 279 Cary, v. 2002, July Facts: On or about 27 PFC 3. (C.A.A.F.2006)(Crawford, J., concurring in Christopher and Private Erick Edwards result). our by refusing apply But agreed Aleman to commit the offense law, offering a rationale own case even express, larceny. agreement was not refusal, stability, majority undermines its however, provided Private Aleman assis- predictability, and confidence his scheme to tance justice system. pick We should pawnshops. TA-50 sell it to local steal See, apply precedent. we our choose when 2002, July Private drove On 27 Aleman 52, Martinelli Copperas Cove (C.A.A.F.2005) J., (Crawford, dissenting) July 2002, Aleman Store. On 28 Private (“lead opinion departs prece- from our own PFC Edwards drove around dent”). surplus at the mall. PFC Edwards store “closely offense ratio- Under the related” TA-50, was not able to sell the two nale, af- Appellant’s conviction should be selling to the barracks without went back Thus, Epps I and Brown. firmed under the TA-50. PFC Edwards then borrowed respectfully dissent. Private Aleman’s car on two other ocea- Mor majority also Henderson v. It is concerned L.Ed. 1461 is curious that 2253, Stumpf, about a habeas when seminal gan, 426 S.Ct. 49 L.Ed.2d U.S. providence inquiry, adequate case as to an Unit- (1976)(habeas at the case where Court looked ed 40 C.M.R. 247 colloquy of fact determine (1969), Boykin large relies to a extent on plea); v. Lon Marshall the voluntariness Alabama, 1709, 23 395 U.S. 89 S.Ct. berger, 103 S.Ct. 74 L.Ed.2d 459 U.S. (habeas (1969) petitioner corpus L.Ed.2d (1983) (habeas examining case voluntariness challenging plea), and Johnson voluntariness of plea). Zerbst, 304 U.S. 58 S.Ct.

Case Details

Case Name: United States v. Aleman

Court Name: Court of Appeals for the Armed Forces

Date Published: Jan 20, 2006

Citation: 2006 CAAF LEXIS 101

Docket Number: 05-0288/AR

Court Abbreviation: C.A.A.F.