United States v. Workneh ( 2017 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 38928
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UNITED STATES
Appellee
v.
Tefera M. WORKNEH
Staff Sergeant (E-5), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 24 March 2017
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Military Judge: Brendon K. Tukey (arraignment); Joseph S. Imburgia
(trial).
Approved sentence: Dishonorable discharge, confinement for six years,
total forfeiture of pay and allowances, reduction to E-1, and to be fined
$42,000.00 and, in the event the fine is not paid, to be confined two
additional years. Sentence adjudged 29 September 2015 by GCM con-
vened at Travis Air Force Base, California.
For Appellant: Kirk Sripinyo, Esquire (argued); Major Michael A.
Schrama, USAF; Captain Patrick L. Clary, USAF.
For Appellee: Captain Tyler B. Musselman, USAF (argued); Colonel
Katherine E. Oler, USAF; Gerald R. Bruce, Esquire; Morgan L. Herrell
(civilian intern). 1
Before DUBRISKE, HARDING, and C. BROWN, Appellate Military Judges
Judge C. BROWN delivered the opinion of the court, in which Senior Judge
DUBRISKE and Judge HARDING joined.
1Ms. Herrell was a law student extern with the Air Force Legal Operations Agency
and was at all times supervised by attorneys admitted to practice before this court.
United States v. Workneh, No. ACM 38928
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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C. BROWN, Judge:
A general court-martial composed of a military judge sitting alone con-
victed Appellant, consistent with his pleas, of unauthorized absence, larceny,
and bank fraud in violation of Articles 86, 121, and 134, Uniform Code of Mili-
tary Justice (UCMJ), 10 U.S.C. §§ 886, 921, 134. 2 The military judge sentenced
Appellant to a dishonorable discharge, confinement for six years, forfeiture of
all pay and allowances, reduction to E-1, and a $42,000.00 fine with two years
of additional contingent confinement if Appellant did not pay the fine. Pursu-
ant to a pretrial agreement (PTA) limiting confinement to seven years, the con-
vening authority approved the sentence as adjudged while waiving mandatory
forfeitures for six months for the benefit of Appellant’s dependent spouse pur-
suant to Article 58b, UCMJ, 10 U.S.C. § 858b.
On appeal, Appellant raises three assignments of error: (1) the military
judge abused his discretion when he accepted Appellant’s guilty plea to bank
fraud under 18 U.S.C. § 1344(2) without establishing that Appellant made a
false or fraudulent representation or promise or used false or fraudulent pre-
tenses to effect the alleged crime; (2) the military judge abused his discretion
when he accepted Appellant’s guilty pleas without inquiring into whether Ap-
pellant’s gambling addiction made him unable to appreciate the nature and
quality of his acts or their wrongfulness; and (3) the convening authority failed
to honor a material term of the PTA when he approved six years of confinement
with an additional two years of contingent confinement in the event that Ap-
pellant did not pay the adjudged fine. We find no relief is warranted for the
first two assigned errors but find merit in the third and thus direct the com-
pletion of a new convening authority’s action and promulgating order.
I. BACKGROUND
At the time of his offenses, Appellant was assigned as Deputy Disburse-
ment Officer, 60th Comptroller Squadron, Travis Air Force Base (AFB), Cali-
fornia. In this position, he had the authority to access and withdraw govern-
2Appellant pled not guilty to desertion under Article 85, UCMJ, 10 U.S.C. § 885, but
guilty to the lesser-include offense of absence without leave, in violation of Article 86,
UCMJ, 10 U.S.C. § 886. The Government declined to prove up the greater offense.
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United States v. Workneh, No. ACM 38928
ment funds for official use by printing and authenticating United States Treas-
ury checks and cashing those checks at the Armed Forces Bank on Travis AFB.
He also had access to the Finance Area Cashier Vault (the Vault) at the comp-
troller squadron where cash funds were stored. In October 2012, Appellant
went to a casino for the first time and began to play blackjack. He soon became
a frequent visitor to the casino, and by October 2014, he had lost approximately
$60,000.00 of his family’s money, including their life savings and $43,000.00 in
credit card advances. In an attempt to become debt free prior to an upcoming
permanent change of station move, Appellant began to gamble with money he
stole from the Vault. Initially, he took $5,000.00 from the Vault and quickly
lost it at a casino. After this initial theft, Appellant gambled at casinos in Cal-
ifornia and Las Vegas, Nevada, using cash he took from the Vault. In total,
Appellant stole $150,000.00 from the Vault, losing the entire amount gam-
bling.
Desperate to gain back his losses, Appellant began issuing and cashing
United States Treasury Checks at the Armed Forces Bank on Travis AFB to
obtain more money to gamble. On six separate occasions, Appellant issued
checks to himself, drafted fraudulent memoranda requesting “emergency
cash,” despite knowing there was no official paying agent mission requiring
such funds, and presented the checks and memoranda to the Armed Forces
Bank. On each occasion, Appellant cashed the check and used the funds to
gamble at various casinos. During the charged time frame, Appellant used this
scheme to obtain $240,000.00 in government funds. In total, including both
cash taken from the Vault and checks cashed at Armed Forces Bank, Appellant
stipulated he was responsible for taking $420,000.00 in government funds for
his own personal use.
After cashing the last treasury check, Appellant went to a casino to spend
the weekend gambling. After losing over $100,000.00 in Air Force funds over
the course of a few days, Appellant bought a plane ticket to his home country
of Ethiopia to see his family before he went to jail. Prior to leaving for Ethiopia,
Appellant penned a letter to his commander, apologizing to him for the thefts
and also to the bank for lying to them about the purpose for obtaining the
money. Appellant remained absent without leave in Ethiopia for approxi-
mately six weeks before voluntarily returning to the United States.
II. DISCUSSION
A. Appellant’s Plea to Bank Fraud in Violation of 18 U.S.C. § 1344(2)
Appellant asserts the military judge abused his discretion when he ac-
cepted Appellant’s guilty plea without establishing that Appellant effected the
alleged bank fraud through the use of a false or fraudulent representation or
promise. Appellant avers the finding of guilty to the bank fraud charge and
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United States v. Workneh, No. ACM 38928
specification should be set aside because of the absence of a material misrep-
resentation, and the case remanded for a sentencing rehearing. We disagree.
We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). A military
judge must determine that there is an adequate basis in law and fact to support
a guilty plea before accepting it. United States v. Inabinette, 66 M.J. 320, 321–
22 (C.A.A.F. 2008). Military judges abuse their discretion when they accept a
guilty plea if they fail to “obtain from the accused an adequate factual basis to
support the plea” or they make any ruling based on an erroneous view of the
law. Id. at 322. While military judges are afforded significant deference in this
area, we review pure questions of law de novo. Id.
“A plea is provident so long as Appellant was ‘convinced of, and [was] able
to describe, all of the facts necessary to establish [his] guilt.’” United States v.
Murphy, 74 M.J. 302, 308 (C.A.A.F. 2015) (alterations in original) (quoting
United States v. O’Connor, 58 M.J. 450, 453 (C.A.A.F. 2003)). The military
judge has a duty “to accurately inform [an a]ppellant of the nature of his of-
fense,” and “[a]n essential aspect of informing . . . is a correct definition of legal
concepts.” United States v. Negron, 60 M.J. 136, 141 (C.A.A.F. 2004); see also
United States v. Care, 18 C.M.A. 535, 541 (C.M.A. 1969). Yet, failure to define
correctly a legal concept or “explain[] each and every element of the charged
offense to the accused in a clear and precise manner” is not reversible error if
it is “clear from the entire record that the accused knew the elements, admitted
them freely, and pleaded guilty because he was guilty.” United States v. Jones,
34 M.J. 270, 272 (C.M.A 1992); see also United States v. Redlinkski, 58 M.J.
117, 119 (C.A.A.F. 2003). “If an accused sets up matter inconsistent with the
plea at any time during the proceeding, the military judge must either resolve
the apparent inconsistency or reject the plea.” United States v. Moon, 73 M.J.
382, 386 (C.A.A.F. 2014) (quoting United States v. Hines, 73 M.J. 119, 124
(C.A.A.F. 2014)). “The providence of a plea is based not only on the accused’s
understanding and recitation of the factual history of the crime, but also on an
understanding of how the law relates to those facts.” Id. at 386 (quoting United
States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008)).
In examining the providence of guilty pleas, courts apply “the substantial
basis test, looking at whether there is something in the record of trial . . . that
would raise a substantial question regarding the appellant’s guilty plea.” Ina-
binette, 66 M.J. at 322. “A military judge abuses [his] discretion if he fails to
obtain from the accused an adequate factual basis to support the plea—an area
in which [courts] accord significant deference.” Id.
Appellant was charged under clause 3 of Article 134, UCMJ, with bank
fraud in violation of 18 U.S.C. § 1344(2). The elements of this offense are that
(1) on divers occasions, Appellant knowingly executed a scheme to obtain
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money or other property, owned by or in the control of a financial institution,
by means of false pretenses; (2) the scheme included a material misrepresen-
tation or concealment of a material fact; (3) Appellant had the intent to obtain
money, or other property owned by, or in the control of a financial institution;
and (4) the financial institution was an insured depository institution. 18
U.S.C. § 1344.
Appellant takes issue with the second element of the charge, noting he
would have had to effect his bank frauds through a material false representa-
tions to have committed the offense. Appellant directs our attention to the
United States Supreme Court’s explanation that “[i]n general, a false state-
ment is ‘material’ if it has ‘a natural tendency to influence, or [is] capable of
influencing, the decision of the decisionmaking body to which it is addressed.’”
Neder v. United States, 527 U.S. 1, 16 (1999) (alteration in original). Appellant
asserts there were no such misrepresentations on his part since he had the
legal authority pursuant to his military duties to access and withdraw funds
held by the wing by printing and cashing treasury checks. Furthermore, the
Air Force was obligated to honor those checks once presented to them by the
bank.
Appellant contends that neither his failure to disclose that he was taking
the money for personal use nor the actual presentation of the check was a ma-
terial misrepresentation. He cites to the Fourth Circuit for the proposition that
“silence as to a material fact (nondisclosure), without an independent disclo-
sure duty, usually does not give rise to an action for fraud . . . .” United States
v. Colton, 231 F.3d 890, 899 (4th Cir. 2000).
During the Care inquiry, the military judge conducted a full inquiry into
Appellant’s understanding of the elements of 18 U.S.C. § 1334(2), and had Ap-
pellant describe in his own words all facts necessary to meet each element,
ascertaining Appellant was personally convinced of his own guilt. In terms of
the contested second element of the offense, the military judge first advised
Appellant that his scheme to obtain money from the financial institution must
have included a material misrepresentation or concealment of a material fact.
The military judge advised Appellant that false representations include false
statements as well as “the knowing concealment of material facts.” The mili-
tary judge further advised Appellant that a misrepresentation or concealment
is material if “it has a natural tendency to influence or is capable of influencing
the decision of a person with ordinary prudence and comprehension.”
When asking Appellant what misrepresentations he made in furtherance
of the bank fraud offense, the following colloquy occurred:
MJ [military judge]: What were your false representations to the
Armed Forces Bank?
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United States v. Workneh, No. ACM 38928
Appellant: Your Honor, it was a memo that said, “Emergency
Cash.” The emergency that I had was my own personal gambling
issue; it was not an emergency for the Air Force.
MJ: Okay. Do you believe that the statements about emergency
cash concerned a material aspect of the matter in question that
were known to be untrue when you made them, or made with
reckless indifference as to the truth?
Appellant: Yes, Your Honor, they would not have given me
money for gambling.
MJ: Okay . . . do you believe that your false representations to
the Armed Forces Banks were material, and by that I mean: do
you believe they had a natural tendency to influence, or be capa-
ble of influencing the decision of a person with ordinary pru-
dence and comprehension, to give you money? And if you do be-
lieve it’s material, why was it material?
Appellant: Yes, Your Honor, just for the same reasons I just
stated.
The stipulation of fact is also instructive as to the materiality of Appellant’s
false representations to the bank. In it, Appellant agrees the fraudulent mem-
orandums were needed to obtain the funds from the bank. In each instance,
the memorandum requested emergency cash, and for each memorandum, Ap-
pellant admits that there was no paying agent mission requiring emergency
cash, but instead the money was for his own personal use. Appellant admits
that had bank personnel known the true purpose for withdrawing the funds,
they would not have given him the money. Finally, in a letter written by Ap-
pellant and attached to the stipulation, Appellant apologizes to the Armed
Forces Bank for telling them “the money was needed for a paying agent mission
when it was not.”
Appellant’s reliance on Colton is misplaced as the holding notes, “Although
silence as to a material fact (nondisclosure), without an independent disclosure
duty, usually does not give rise to an action for fraud, suppression of the truth
with the intent to deceive (concealment) does.” Colton, 231 F.3d at 899 (citing
Stewart v. Wyoming Cattle Ranche Co., 128 U.S. 383, 388 (1888)). Here, the
Fourth Circuit distinguished between nondisclosure and concealment, the lat-
ter of which allows for a finding of fraud. Id. at 899. While nondisclosure is
“mere silence” without any accompanying elements of false representation, an
accused engages in concealment through “deceptive acts or contrivances in-
tended to hide information, mislead, avoid suspicion, or prevent further in-
quiry into a material matter.” Id. The court further defined concealment as:
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United States v. Workneh, No. ACM 38928
a representation that what is disclosed is the whole truth . . .
[f]raudulently producing a false impression upon the mind of the
other party; and if this result is accomplished, it is unimportant
whether the means of accomplishing it are words or acts of the
defendant, or his concealment or suppression of material facts.
Id. (quoting Stewart, 128 U.S. at 388). Here, Appellant concealed the true pur-
pose for obtaining the funds. Whether Appellant’s actions are termed an af-
firmative misrepresentation or the knowing concealment of a material fact,
Appellant’s plea met all of the elements of bank fraud in violation of 18 U.S.C.
§ 1344(2), and is, therefore, provident.
B. Effect of Appellant’s Gambling Addiction on his Pleas
Appellant next asserts the military judge abused his discretion when he
accepted Appellant’s guilty pleas without inquiring into whether Appellant’s
addiction to gambling made him unable to appreciate the nature and quality
of his acts or their wrongfulness. Throughout the trial, Appellant made numer-
ous references to his addiction to gambling. Additionally, the parties attached
three scientific papers discussing pathological gambling and its effects to the
stipulation of fact. Finally, as part of his pretrial agreement, Appellant waived
government production of witnesses beyond 50 miles, although he stated at
trial he would have asked for a gambling expert or psychiatrist to testify on his
behalf absent the limitation found in the PTA. Appellant now believes that the
military judge had a duty to reopen his plea inquiry to inquire about an affirm-
ative defense of lack of mental responsibility after the numerous references to
Appellant’s gambling addiction during trial.
A military judge’s decision to accept a guilty plea is examined for an abuse
of discretion, and questions of law arising from the guilty plea are reviewed de
novo. Inabinette, 66 M.J. at 322. An abuse of discretion occurs when there is
“something in the record of trial, with regard to the factual basis or the law,
that would raise a substantial question regarding the appellant’s guilty plea.”
Id. “If an accused sets up matter inconsistent with the plea at any time during
the proceeding, the military judge must either resolve the apparent incon-
sistency or reject the plea.” United States v. Phillippe, 63 M.J. 307, 309
(C.A.A.F. 2006) (quoting United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F.
1996)) (quotation marks omitted). “Even if an accused does not volunteer all
the facts necessary to establish a defense, if he sets up matter raising a possible
defense, then the military judge is obliged to make further inquiry to resolve
any apparent ambiguity or inconsistency.” United States v. Hayes, 70 M.J. 454,
460 (C.A.A.F. 2012) (quoting Phillippe, 63 M.J. at 310).
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United States v. Workneh, No. ACM 38928
Lack of mental responsibility is an affirmative defense. United States v.
Shaw, 64 M.J. 460, 462 (C.A.A.F. 2007). This defense is established by demon-
strating that at the time of the offenses, the accused: “(1) suffered from a ‘se-
vere mental disease or defect’ and (2) as a result, was ‘unable to appreciate the
nature and quality or the wrongfulness of the acts.’” United States v. Martin,
56 M.J. 97, 103 (C.A.A.F. 2001) (quoting Article 50a(a), UCMJ, 10 U.S.C. §
850a(a)). An accused bears the burden of proving a lack of mental responsibil-
ity. Shaw, 64 M.J. at 462 (citing Rule for Courts-Martial (R.C.M.) 916(b)). A
military judge may presume an accused is sane and that defense counsel has
conducted an inquiry into whether the defense of lack of mental responsibility
exists in the case at hand. Shaw, 64 M.J. at 463.
However, a military judge is obligated to conduct an appropriate inquiry,
or even reopen the plea inquiry, “when a possible defense has been raised and
not satisfactorily refuted because such a matter would be inconsistent with the
accused’s guilty plea.” United States v. Falcon, 65 M.J. 386, 391 (C.A.A.F.
2008). The “‘mere possibility’ of a defense,” on the other hand, “without more,
does not give rise to this obligation.” Id. (citing Shaw, 64 M.J. at 462). In Fal-
con, the appellant argued that the military judge should have reopened the
Care inquiry after he introduced evidence of his gambling addiction in sentenc-
ing. Id. Ultimately, the court found that evidence of the appellant’s gambling
addiction introduced during sentencing neither set up a matter inconsistent
with his pleas, nor required the military judge to inquire into the appellant’s
mental responsibility. Id. The court found “no authority that a diagnosis of
pathological gambling can constitute a defense of lack of mental responsibility
or partial mental responsibility.” Id. at 391–92. The court noted “the lack of
any testimony that Falcon’s diagnosis could have affected his ability to form
the specific intent to defraud,” and found the military judge did not abuse his
discretion in accepting the appellant’s guilty plea. Id. at 392.
While there is no doubt Appellant had a gambling problem, there is no ev-
idence in the record that a gambling addiction could or did render him unable
to appreciate the nature and quality or the wrongfulness of his acts. Appel-
lant’s addiction was raised at trial; however, its effect on Appellant’s ability to
appreciate the nature of his actions was not. The articles admitted at trial and
cited by Appellant on appeal discuss the potential underlying causes and mo-
tivations for pathological gambling, but they do not suggest that pathological
gambling is a severe mental disease or defect that might cause someone to be
unable to appreciate the nature and quality of their crimes or the wrongfulness
of their acts. Similarly, Appellant had no diagnosed mental disease or defect
calling into question his ability to appreciate the nature or wrongfulness of his
offenses.
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The Care inquiry demonstrates that lack of mental responsibility was not
at issue in this case. Appellant repeatedly stated that he had no legal justifi-
cations or excuse for his actions, that his conduct was wrong, that he could
have avoided engaging in the criminal conduct, and that no one forced him to
commit the offenses. In terms of the bank fraud, Appellant stated, “I knew it
was wrong each time, yet I returned for more money once I had lost it.” The
detailed nature of the bank fraud where on six different occasions Appellant
had to issue a check, prepare a fraudulent memorandum, and present it to the
bank to obtain the money belie Appellant’s arguments now that he was unable
to appreciate the nature and wrongfulness of his actions. Furthermore, his
journey to Ethiopia to see his family one more time “before he would face
prison” further support his appreciation of the nature and quality of his crimes
and their wrongfulness. While better practice might have been for the military
judge to reopen the Care inquiry after numerous references to a gambling ad-
dition, it was not required under the facts of this case, and we find Appellant’s
pleas provident.
C. Convening Authority’s Action
Appellant asserts the convening authority failed to honor a material term
of the PTA when he approved a sentence that included six years of confinement
with an additional two years’ contingent confinement if Appellant did not pay
the adjudged $42,000.00 fine. The sole sentence limitation in the PTA was to
cap approval of adjudged confinement at seven years. At trial, the military
judge reviewed the quantum portion of the PTA and counsel for both sides
agreed that to be consistent with the PTA, contingent confinement should be
limited to one year.
When an appellate issue concerns the meaning and effect of a PTA, inter-
pretation of the agreement is a question of law, subject to de novo review.
Unites States v. Lundy, 63 M.J. 299, 301 (C.A.A.F. 2006). When an appellant
contends that the government has not complied with a term of the agreement,
the issue of noncompliance is a mixed question of fact and law. Id. The appel-
lant bears the burden of establishing that the term is material and that the
circumstances establish governmental noncompliance. Id. at 302. In the event
of noncompliance with a material term, we consider whether the error is sus-
ceptible to remedy in the form of specific performance or in the form of alter-
native relief agreeable to the appellant. Id. at 305 (Effron, J., concurring). If
such a remedy does not cure the defect in a material term, the plea must be
withdrawn and the findings and sentence set aside. United States v. Perron, 58
M.J. 78, 85–86 (C.A.A.F. 2003). “When the parties at trial evidence on the rec-
ord their understanding of a bargain, the accused is entitled to have the bar-
gain complied with according to that understanding.” United States v. Muller,
21 M.J. 205, 206 (C.M.A. 1986). “[A]mbiguities in the interpretation of pretrial
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United States v. Workneh, No. ACM 38928
agreements are resolved in favor of the accused.” United States v. Davis, 20
M.J. 903, 905 (A.C.M.R. 1985).
We find the convening authority’s action defective in two regards. First,
while it technically served as the notification to Appellant that the fine was
due and payable, it did not include a specific due date for the fine. See Air Force
Instruction 51-201, Administration of Military Justice, ¶ 9.34.1. 3 The govern-
ment would be hard-pressed to enforce contingent confinement based upon Ap-
pellant’s failure to pay the fine without informing Appellant when the fine was
due to be paid. Second, because the parties’ evidenced their understanding on
the record that at most one year of contingent confinement could be approved,
Appellant is entitled to the benefit of this interpretation. Thus, we direct the
completion of a new convening authority’s action and promulgating order to
address the above deficiencies.
III. CONCLUSION
The record of trial is returned to The Judge Advocate General for remand
to the convening authority for withdrawal of the original action and substitu-
tion of a corrected action and promulgating order consistent with this opinion.
Thereafter, the record of trial shall be returned to this court for completion of
appellate review under Article 66, UCMJ, 10 U.S.C. § 866.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
3This regulatory provision reads, “When the fine is ordered executed, the accused must
be notified in writing the fine is due and payable. A specific due date should be included
in the notification. If the accused is in confinement, the due date should normally be a
reasonable period before the accused is scheduled for release from confinement to allow
adequate time for a contingent confinement hearing and convening authority action.”
10