United States v. Private E1 BRETT M. GASKILL ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, GALLAGHER,* and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 BRETT M. GASKILL
United States Army, Appellant
ARMY 20110028
Headquarters, III Corps and Fort Hood
Jacqueline Emanuel, Military Judge
Colonel Phillip N. Foster, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA (on brief); Colonel Kevin F. Boyle, JA;
Major Jacob D. Bashore, JA (on brief in response to specified issue).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley,
JA; Captain Bradley M. Endicott, JA; Captain Edward J. Whitford, JA (on brief);
Colonel John P. Carrell, JA; Lieutenant Colo nel James L. Varley, JA; Major
Catherine L. Brantley, JA; Captain Samuel Gabremariam, JA (on brief in response to
specified issue).
12 August 2013
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of failing to go to his appointed place of
duty, two specifications of absence without leave, one specification of reckless
driving, and five specifications of larceny in violation of Articles 86, 111, and 121,
Uniform Code of Military Justice, 10 U.S.C. §§ 886, 911, 921 (2006) [hereinafter
UCMJ]. The military judge also convicted appellant of one specification of failing
to go to his appointed place of duty as a closely related offense of absence without
leave in violation of Article 86, UCMJ, 10 U.S.C. § 886. The military judge
sentenced appellant to a bad-conduct discharge, confinement for twelve months, and
to forfeit $978.00 pay per month for twelve months. The convening authority
approved only so much of the sentence as provided for a bad -conduct discharge,
_______________________
* Judge GALLAGHER took final action on this case prior to her permanent change
of duty station.
GASKILL – ARMY 20110028
confinement for six months, and forfeiture of $978.00 pay per month for six months.
The convening authority credited appellant with 177 days of confinement credit.
This case is before this court for review pursuant to Article 66, UCMJ.
Appellate counsel assigned three errors to this court and appellant personally raised
matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). After
our review of the record, we requested counsel address two additional issues. While
both of these two additional issues merit discussion , only one merits relief. The
additional assignments of error and those matters personally raised by appellant
pursuant to Grostefon are without merit.
BACKGROUND
Failure to Report
In Specification 2 of Charge II, appellant was charged with absence without
leave in violation of Article 86, UCMJ. At trial, pursuant to a pretrial agreement,
appellant pleaded guilty to the charged offense. The military judge explained the
elements of absence without leave and asked appellant to explain why he was guilty
of such an offense. Appellant explained that from 5 October 2010 until 7 October
2010, he did not leave the installation but remained in his barracks room located on
Fort Hood. He missed several formations, physical training sessions, and work -call.
He eventually returned to duty when a noncommissioned officer came to his room on
7 October 2010 and ordered him to return to duty. Based on appellant’s statements
during the providence inquiry, the military judge found him not guilty of absence
without leave but guilty of failing to report to his appointed place of duty. During
the colloquy, the military judge neither discussed this other offense with appellant
nor listed the elements of that offense.
Larceny
In Specifications 2, 3, and 4 of Charge V, appellant was charged with larceny
of funds from three different soldiers within his unit. The charges stemmed from
appellant stealing bank debit cards and subsequently using the cards to purchase
goods. Each specification listed the victim of the larceny as the individual service
member rather than the merchants providing the goods or the issuers of the bank
debit cards.
Again pursuant to a pretrial agreement, appellant entered pleas of guilty to
each of the three specifications. Consistent with the specifications, t he military
judge listed the elements of larceny, stating that appellant took “money in the form
of unauthorized bank card usage.” She then questioned appellant regarding the
factual basis for his plea. Appellant admitted stealing Sergeant (SGT) PB’s , Private
First Class (PFC) DP’s, and PFC MK’s bank cards and using them, without
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authorization, like a credit card to debit money from their respective bank accounts
to purchase pizza, Xbox games, and Xbox videos.
LAW AND DISCUSSION
Failure to Report
Appellant argues the military judge abused her discretion when she found
appellant not guilty of absence without leave but guilty of failing to go to his
appointed place of duty because failure to report is not a lesser included offense of
absence without leave. In its response to appellant’s argument, the government
concedes the military judge abused her discretion in convicting appellant of failing
to report as an undiscussed variation of absence without leave. In this case, we
agree with appellant and accept the government’s concession on this issue. As such,
we will take appropriate action in our decretal paragraph.
Larceny
Article 45, UCMJ, requires the plea to be rejected if the accused sets up a
“matter inconsistent with the plea, or if it appears that he has entered the plea of
guilty improvidently or through lack of understanding of its meaning and effect
. . . .” A military judge must both explain the elements of an offense and elicit a
factual basis to support each element of the offense. United States v. Jordan, 57
M.J. 236, 238 (C.A.A.F. 2002); United States v. Faircloth, 45 M.J. 172, 174
(C.A.A.F. 1996). “We review a military judge’s decision to accept a guilty plea for
an abuse of discretion and questions of law arising from the guilty plea de novo. In
doing so, we apply the substantial basis test, looki ng at whether 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.” United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
“Wrongfully engaging in a credit, debit, or electronic transaction to obtain
goods or money is an obtaining-type larceny by false pretense. Such use to obtain
goods is usually a larceny of those goods from the merchant offering them.” Manual
for Courts-Martial, United States (2008 ed.) [hereinafter MCM], pt. IV, ¶
46.c.(1)(h)(vi). However, “. . . alternative charging theories remain available if
warranted by the facts.” United States v. Lubasky, 68 M.J. 260, 264 (C.A.A.F. 2010)
(citation omitted). See also Lubasky, 68 M.J. at 263 (noting use of a debit card can
constitute larceny of money from the owner of the bank account). “As used in
Article 121, UCMJ, the single term ‘larceny’ encompasses and consolidates what in
the past were separate crimes, i.e., larceny, larceny by trick, embezzlement, and
obtaining property by false pretenses.” Lubasky, 68 M.J. at 263 (citing United
States v. Antonelli, 35 M.J. 122, 124 (C.M.A. 1992)). “Because of this, ‘the
particular means of acquisition of the property became re latively unimportant . . . .’”
Lubasky, 68 M.J. at 263 (quoting United States v. Aldridge, 25 C.M.A. 330, 331-32,
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GASKILL – ARMY 20110028
8 C.M.R. 130, 131-32 (1953)). See also United States v. Meng, 43 M.J. 801 (A.F.
Ct. Crim. App. 1995), pet. denied, 44 M.J. 47 (C.A.A.F. 1996) (finding both
wrongful taking and wrongful obtaining were valid theories of larceny when
appellant caused the electronic transfer of funds ).
In this guilty plea case, the military judge advised appellant of the elements
and definitions of larceny by wrongfully taking “money in the form of unauthorized
bank card usage” from the three individual soldiers. As to each of the larcenies, the
stipulation of fact and appellant’s providence inquiry identified the monetary
amount debited at each transaction from the named victim’s bank account and the
unauthorized nature of the card use. More importantly, appellant expressly agreed
that the funds belonged to the individual soldier -victims, and that appellant
wrongfully obtained money in the form of unauthorized bank card usage with the
specific intent to permanently defraud the individual soldier of the use and benefit of
his money. The providence inquiry, in combination with the stipulation of fact,
sufficiently supported the pleas of guilty to each larceny as set forth in the
specifications.
We are satisfied from the record as a wh ole that appellant understood his plea
to the charged larceny offenses and understood how the law related to the facts of
his case. As such, we do not find a substantial basis in law and fact to question
appellant’s guilty plea to Specifications 2, 3, and 4, of Charge V .
CONCLUSION
The finding of guilty of Specification 2 of Charge II is set aside and
dismissed. The remaining findings of guilty are AFFIRMED.
Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A.
1986) and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the
factors identified by Judge Baker in his concurring opinion in Moffeit, the court
affirms the sentence.
FOR
FOR THE
THE COURT:
COURT:
ANTHONY O. POTTINGER
Chief Deputy Clerk
ANTHONY O.ofPOTTINGER
Court
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