United States v. Aleman , 62 M.J. 281 ( 2006 )

UNITED STATES, Appellee
v.
Erick ALEMAN, Private
U.S. Army, Appellant
No. 05-0288
Crim. App. No. 20030240
United States Court of Appeals for the Armed Forces
Argued November 1, 2005
Decided January 20, 2006
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and BAKER and ERDMANN, JJ., joined. CRAWFORD, J., filed a
dissenting opinion.
Counsel
For Appellant: Captain Edward Bahdi (argued); Lieutenant
Colonel Kirsten V. C. Brunson, Major Sean S. Park, and Captain
Charles A. Kuhfahl Jr. (on brief); Colonel Mark Cremin, Colonel
John T. Phelps II, and Lieutenant Colonel Mark Tellitocci.
For Appellee: Captain Mark D. McMann (argued); Colonel Steven
T. Salata, Lieutenant Colonel Theresa A. Gallagher, and Captain
Edward E. Wiggers (on brief); Captain Michael Friess.
Military Judge: Michael Neveu
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Aleman, No. 05-0288/AR
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of a military judge
sitting alone, Appellant was convicted, in accordance with his
pleas, of conspiracy to commit larceny, willfully suffering the
sale of military property (two specifications), and
housebreaking, in violation of Articles 81, 108, and 130,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 908,
930 (2000), respectively. The adjudged and approved sentence
included a bad-conduct discharge, confinement for six months,
forfeiture of all pay and allowances, and reduction to the
lowest enlisted grade. The United States Army Court of Criminal
Appeals affirmed the findings and sentence in an unpublished
opinion. United States v. Aleman, No. ARMY 20030240 (A. Ct.
Crim. App. Jan. 14, 2005).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE MILITARY JUDGE ERRED IN
ACCEPTING APPELLANT’S PLEA OF GUILTY TO
WILLFULLY SUFFERING THE SALE OF MILITARY
PROPERTY (SPECIFICATIONS 1 AND 2 OF CHARGE
II) WHERE THERE WAS NO EVIDENCE ADDUCED
DURING THE PROVIDENCE INQUIRY THAT APPELLANT
HAD ANY INDEPENDENT DUTY TO SAFEGUARD THE
MILITARY PROPERTY IN QUESTION.
For the reasons set forth below, we conclude that
Appellant’s pleas to specifications 1 and 2 of Charge II were
improvident.
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I. BACKGROUND
Article 108(3), UCMJ, provides for the trial by court-
martial of a person who, without proper authority “willfully or
through neglect suffers to be lost, damaged, sold, or wrongfully
disposed of” any military property of the United States. In
this context, “suffers” means “to allow or permit.” Manual for
Courts-Martial, United States pt. IV, para. 32.c.(2) (2005 ed.)
(MCM). The MCM sets forth five elements of the offense:
(1) That certain property . . . was . . . sold . . .;
(2) That the property was military property of the
United States;
(3) That the . . . sale . . . was suffered by the
accused, without proper authority, through a certain
omission of duty by the accused;
(4) That the omission was willful or negligent; and
(5) That the property was of a certain value . . . .
pt. IV, para. 32.b.(3). The reference to “omission” in the
third and fourth elements is “significant because the
prosecution must prove a duty and the failure to do the duty.”
Dep’t of the Army, Pamphlet 27-9, Legal Services, Military
Judges’ Benchbook ch. 3, para. 3-32-3 (2002).
During the providency inquiry at trial, the military judge
advised Appellant of the elements of the offenses for which he
was charged. In the course of this advice, the military judge
defined “suffered” as follows:
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“Suffered” means you allowed or permitted
this to occur. Suffering included the
deliberate violation or intentional
disregard of some specific law or
regulation; or the duty or customary
practice of the service; or reckless or
unwarranted personal use of the property by
causing or allowing it to remain exposed to
the weather, unsecured or not guarded,
permitting it to be consumed, wasted,
injured, and so on. It could also include
by allowing it to be damaged, lost,
destroyed, or wrongfully disposed of.
In conjunction with the plea inquiry, the prosecution
introduced a stipulation of fact in which Appellant admitted
that he and Private First Class (PFC) Edwards “agreed to commit
the offense of larceny.” The stipulation further stated that
although the agreement was “not express,” Appellant provided
assistance to PFC Edwards “in his scheme” to steal and sell
military equipment by driving PFC Edwards to various pawnshops,
loaning PFC Edwards his car to go to stores, keeping lookout
while PFC Edwards stole military equipment, and helping PFC
Edwards carry the equipment into Appellant’s car and into one of
the stores. Through the stipulation, Appellant admitted that he
knew the equipment was military property and that PFC Edwards
did not have authority or permission to take it.
During the inquiry, Appellant confirmed the veracity of the
stipulation of fact. He added that he and PFC Edwards “didn’t
have an expressed [sic] agreement, but we had an understanding
and I gave him a ride to post that day.” After Appellant
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provided further details concerning his role in suffering the
sale of the equipment, the military judge reminded Appellant of
the definition of “suffered” and asked Appellant if he believed
he suffered the sale of the property by allowing it to be sold.
Appellant answered in the affirmative. The military judge also
elicited testimony from Appellant regarding the value of the
property, the intentional nature of his acts, the absence of
permission or authority for his acts, and the military status of
the property.
II. DISCUSSION
Before accepting a plea of guilty, the military judge must
conduct an inquiry of the accused to determine whether there is
a factual basis for the plea and whether the accused understands
the plea and enters it voluntarily. United States v. McCrimmon,
60 M.J. 145, 152 (C.A.A.F. 2004); United States v. Care, 18
C.M.A. 535, 40 C.M.R. 247 (1969); Rule for Courts-Martial
(R.C.M.) 910(c)-(e). The accused must admit every element of
the offense to which the accused is pleading guilty. R.C.M.
910(e) Discussion. Under our standard of review for assessing
the providency, “a guilty plea will be rejected only where the
record of trial shows a substantial basis in law and fact for
questioning the plea.” E.g., United States v. Harris, 61 M.J.
391, 398 (C.A.A.F. 2005) (citations omitted). Appellant
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contends that his guilty plea to each of the two offenses of
suffering the sale of military property was improvident because
the inquiry did not establish a factual basis for the third
element -- that there was a “certain omission of duty by the
accused.” MCM, pt. IV, para. 32.b.(3)(c).
During the providence inquiry, the military judge provided
the following advice concerning the “duty” element: “The third
element is that the sale was suffered by you without proper
authority through a mission [sic] of duty on your part.” As the
record shows, and the Government acknowledges, there was no
further discussion of any duty on the part of Appellant during
the providence inquiry. The military judge did not elicit any
testimony from Appellant regarding any duty he may have had to
safeguard the property, and Appellant did not articulate such a
duty. Without an admission by Appellant or any other evidence
in the record establishing this element of the offense, the plea
lacks the requisite factual basis.
The Government contends in this appeal that Appellant’s
statements in the stipulation of fact -- that his acts and
omissions were wrongful -- satisfy the providency requirement
with respect to the nature of his duty. Although it is
appropriate to rely upon stipulations of fact to establish a
factual basis for a guilty plea, see, e.g., United States v.
Sweet, 42 M.J. 183, 185 (C.A.A.F. 1995), the particular
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statements in Appellant’s stipulation of fact do not recognize
the existence of a duty to safeguard the military property. The
relevant passages of the stipulation of fact state:
The accused knew PFC Edwards had no
authority when he made the sales. The
accused failed to stop PFC Edwards from
selling the military equipment, and
furnished the vehicle to transport PFC
Edwards and the stolen equipment so it could
be sold. The accused knew that his omission
was wrongful.
These statements do not reflect an understanding that the
failure to stop PFC Edwards was wrongful because of a duty to
protect the property -- only a general belief that the failure
was wrongful. In the absence of any further discussion of a
duty, these statements are insufficient to establish the factual
predicate required by Care and its progeny.
The Government suggests that if we conclude that the
inquiry was deficient, we can nonetheless sustain Appellant’s
conviction. Citing United States v. Epps, 25 M.J. 319 (C.M.A.
1987), the Government contends that the plea inquiry is
sufficient to sustain a conviction for the closely related
offense of selling military property, a crime for which there is
no “omission of duty” element. See Article 108(1), UCMJ; MCM,
pt. IV, para. 32.b.(1). The Government acknowledges that
Article 108(1) requires a showing that the accused sold the
property but maintains that element is satisfied in this case
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through an aiding and abetting theory. We decline to apply Epps
in this case because the military judge did not advise Appellant
as to such a theory, nor did Appellant articulate an
understanding of such a theory. See United States v. Redlinski,
58 M.J. 117, 119 (C.A.A.F. 2003). Appellant’s plea to the
pertinent offenses is improvident, and those specifications must
be set aside.*
Appellant contends that he is also entitled to a sentence
rehearing. Under the circumstances of this case, further
proceedings on the sentence are not warranted. The remaining
charges and specifications, which arose out of the same factual
scenario, are not affected by our action setting aside the
conviction for Charge II. In this judge-alone proceeding, we
are confident that Appellant’s conviction for specifications 1
and 2 of Charge II did not have a “substantial influence” on the
sentence in this case. United States v. Huhn, 54 M.J. 493, 494
*
The dissent relies on United States v. Brown, 45 M.J. 389 (C.A.A.F. 1996),
and Bradshaw v. Stumpf, 125 S. Ct. 2398 (2005). United States v. Aleman, 62
M.J. ___ (1-2) (C.A.A.F. 2006) (Crawford, J., dissenting). Brown, which
rejected a constitutional challenge to a federal statute, was a contested
case, so the issue of providency did not arise. 45 M.J. at 391-92. Stumpf,
a collateral attack on a state court conviction under the narrow constraints
of federal habeas corpus review, employed a standard that is not applicable
to direct review of providency under military law. Compare Stumpf, 125 S.
Ct. at 2405 (constitutional prerequisites of a guilty plea are satisfied if
counsel has explained the elements to the defendant), with United States v.
Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969) (under military law,
counsel’s explanation will not relieve the military judge of the
responsibility to explain the elements on the record). See also R.C.M.
910(c)(1) Discussion; R.C.M. 910(e) Discussion.
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(C.A.A.F. 2001) (citing Kotteakos v. United States, 328 U.S.
750, 765 (1946)); Article 59(a), UCMJ, 10 U.S.C. § 859 (2000).
III. DISPOSITION
Specifications 1 and 2 of Charge II are set aside and
dismissed, and Charge II is set aside and dismissed. In all
other respects, the decision of the United States Army Court of
Criminal Appeals is affirmed.
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CRAWFORD, Judge (dissenting):
I respectfully dissent from the majority’s refusal to apply
this Court’s longstanding precedent. See, e.g., United States
v. Brown, 45 M.J. 389, 394 (C.A.A.F. 1996) (the majority
rejected appellant’s argument challenging the anti-union
statute, 10 U.S.C. § 976, and noted that “[a]n alternative
ground for upholding appellant’s conviction would be to affirm
the conviction for an offense closely related to the offense
charged”); United States v. Epps, 25 M.J. 319 (C.M.A.
1987)(upheld guilty plea for closely related offense). There is
not a “substantial basis” in law or fact to set aside the plea
in this case. United States v. Prater, 32 M.J. 433, 436 (C.M.A.
1991). Appellant admitted he was a principal to the wrongful
sale of military property. Thus, Appellant’s admissions would
certainly encompass the “closely related” offense of suffering
the sale of military property.
FACTS
Pursuant to his pleas, Appellant was convicted of the
following offenses:
Specification of Charge I - conspiracy with
Private First Class (PFC) Christopher D. Edwards to
steal TA-50 governmental equipment and “in order to
effect the object of the conspiracy . . . did
knowingly furnish his vehicle to be used as a
transport to the store in which the items were sold.”
United States v. Aleman, No. 05-0288/AR
Specification 1, Charge II - “willfully suffer
TA-50 [equipment] . . . to be sold to the Cove Army
Store” on July 24, 2002.
Specification 2, Charge II – “willfully suffer
TA-50 [equipment] . . . to be sold to the Rancier Army
Store” on July 27, 2002.
Specification of Charge III – housebreaking.
During the inquiry on the providence of the plea, Appellant
admitted he entered into a conspiracy with PFC Edwards to steal
and sell military equipment (TA-50). As part of the conspiracy,
he assisted PFC Edwards with the housebreaking and theft, and on
July 27, 2002, drove PFC Edwards to one off-post store where PFC
Edwards sold the military property (Charge II, specification 1)
and on July 28, 2002, knowingly permitted PFC Edwards to take
his car to sell part of the stolen property on another date
(Charge II, specification 2). After the military judge’s
explanation of the plea and inquiry, the defense did not think
any “additional inquiry [was] required regarding [the
conspiracy] offense.” Bradshaw v. Stumpf, 125 S. Ct. 2398, 2406
(2005) (“Where a defendant is represented by competent counsel,
the court usually may rely on that counsel’s assurance that the
defendant has been properly informed of the nature and elements
of the charge to which he is pleading guilty.”)∗
∗
It is curious that the majority is concerned about Stumpf, a habeas case,
when the seminal case as to an adequate providence inquiry, United States v.
Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969), relies to a large extent on Boykin
v. Alabama, 395 U.S. 238 (1969) (habeas corpus petitioner challenging
voluntariness of plea), and Johnson v. Zerbst, 304 U.S. 458, 464 (1938). See
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Appellant knew the value of the stolen property alleged in
specifications 1 and 2; in fact, as to specification 2, he said
the value was $1,200. After PFC Edwards sold the property at
Rancier, he received some battle dress uniforms and about $200.
Appellant admitted that “suffered” means allowing the property
to be “wrongfully disposed of or sold.”
He also stipulated to the following facts:
3. Facts: On or about 27 July 2002, PFC Christopher
Edwards and Private Erick Aleman agreed to commit the
offense of larceny. The agreement was not express,
however, Private Aleman provided assistance to PFC
Edwards in his scheme to steal TA-50 and sell it to
local pawnshops. On 27 July 2002, Private Aleman
drove PFC Edwards to the Copperas Cove Store. On 28
July 2002, Private Aleman and PFC Edwards drove around
to the surplus store at the mall. PFC Edwards was not
able to sell the TA-50, and the two went back to the
barracks without selling the TA-50. PFC Edwards then
borrowed Private Aleman’s car on two other occasions.
He used the car to go to stores on Rancier to sell TA-
50.
Appellant admitted the facts in the stipulation were correct.
Appellant admitted he entered into an agreement with PFC
Edwards to commit larceny, and that the agreement continued to
exist while Appellant was a party to the agreement. The overt
act performed as to Charge II, specification 1, was driving PFC
Edwards to the Cove Army store, and as to Charge II,
specification 2, was furnishing his vehicle so the stolen
also Henderson v. Morgan, 426 U.S. 637 (1976)(habeas case where the Court
looked at the colloquy and the stipulation of fact to determine the
voluntariness of the plea); Marshall v. Lonberger, 459 U.S. 422 (1983)
(habeas case examining voluntariness of plea).
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property could be sold. When one causes an act to be done, in
this case the sale, that person is as guilty as if he carried
out that act himself.
It is disturbing that this Court has refused to follow, or
ignored, Supreme Court precedent when construing similar
statutes or rules, or interpreting constitutional rights.
United States v. Cary, 62 M.J. ___ (1)(C.A.A.F. 2006)(Crawford,
J., concurring in the result). But by refusing to apply our own
case law, or even offering a rationale for its refusal, the
majority undermines stability, predictability, and confidence in
the military justice system. We should not pick and choose when
we apply our precedent. See, e.g., United States v. Martinelli,
62 M.J. 52, 87 (C.A.A.F. 2005) (Crawford, J., dissenting) (“lead
opinion departs from our own precedent”).
Under the “closely related” offense rationale, Appellant’s
conviction should be affirmed under Epps and Brown. Thus, I
respectfully dissent.
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