United States v. Specialist RICKY L. BLUE, JR. ( 2015 )

                                HAIGHT, PENLAND, and WOLFE
                                   Appellate Military Judges
                                UNITED STATES, Appellee
                              Specialist RICKY L. BLUE, JR.
                              United States Army, Appellant
                                        ARMY 20131091
                              Headquarters, 7th Infantry Division
                         Jeffery Lippert, Military Judge (arraignment)
                               Brad Bales, Military Judge (trial)
                  Lieutenant Colonel Michael S. Devine, Staff Judge Advocate
    For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Yolanda McCray-
    Jones, JA; Major Candace N. White Halverson, JA (on brief).
    For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie III, JA; Major
    Daniel D. Derner, JA; Captain Samuel E. Landes, JA (on brief).
                                       30 December 2015
                                    SUMMARY DISPOSITION
    Per Curiam:
           A military judge sitting as a general court-martial convicted appellant,
    pursuant to his pleas, of five specifications of larceny and two specifications of
    obstructing justice, in violation of Articles 121 and 134, Uniform Code of Military
    Justice, 10 U.S.C. §§ 921 and 934 [hereinafter UCMJ]. The military judge
    sentenced appellant to a bad-conduct discharge, fifteen months of confinement, and
    reduction to the grade of E-1. The convening authority approved the adjudged
          This case is before us for review under Article 66, UCMJ. Appellant assigns
    one error, which does not merit discussion or relief. However, one additional issue
    warrants brief discussion and relief.
    BLUE – ARMY 20131091
           With respect to the larceny specifications, appellant was charged with,
    pleaded guilty to, and was convicted of stealing distinct military financial
    allowances or entitlements, at different duty stations, and throughout different time
    frames. Four of the specifications charge appellant with stealing the relevant
    military allowance “on divers occasions” throughout the alleged time period.
           This very scenario was addressed in United States v. Hines, 
    73 M.J. 119
    (C.A.A.F. 2014). As Hines clarifies, “the formulation of a plan or scheme or the
    setting up of a mechanism which, when put into operation, will result in the taking
    or diversion of sums of money on a recurring basis, will produce but one crime.” Id.
    at 123 (quoting United States v. Billingslea, 
    603 F.2d 515
    , 520 (5th Cir. 1979)).
    Accordingly, we will amend four of the larceny specifications by removing the
    words “on divers occasions.”
           The court amends the findings of guilty of Specifications 1, 2, 4, and 5 of
    Charge I by deleting and dismissing the words “on divers occasions” from those
    specifications and AFFIRMS the findings of guilty to those specifications as
    amended. The remaining findings of guilty are AFFIRMED. After reassessment of
    the sentence in accordance with United States v. Winckelmann, 
    73 M.J. 11
    2013), and United States v. Sales, 
    22 M.J. 305
     (C.M.A. 1986), the sentence is
    AFFIRMED. Not only do we find this reassessed sentence purges any taint from the
    abovementioned error, but it is also appropriate. All rights, privileges, and property
    of which appellant was deprived by virtue of that portion of the findings being set
    aside by this decision are hereby ordered restored.
                                          FOR THE COURT:
                                         FOR THE COURT:
                                         JOHN P. TAITT
                                         Chief    P. TAITT
                                               Deputy Clerk of Court
                                           Deputy Clerk of Court

Document Info

DocketNumber: ARMY 20131091

Filed Date: 12/30/2015

Precedential Status: Non-Precedential

Modified Date: 1/4/2016