United States v. Specialist RILEY W. COLLIER ( 2017 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist RILEY W. COLLIER
United States Army, Appellant
ARMY 20160447
Headquarters, Fort Carson
Lanny J. Acosta, Military Judge
Colonel Gregg A. Engler, Staff Judge Advocate
For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Matthew L. Jalandoni, JA (on brief); Colonel Mary J. Bradley, JA; Major
Julie L. Borchers, JA; Captain Steven J. Dray, JA (Motion for Reconsideration).
For Appellee: Colonel Mark H. Sydenham, JA; Major Cormac M. Smith, JA; Major
Ian M. Guy, JA (on brief).
8 November 2017
-----------------------------------------------------------------
MEMORANDUM OPINION ON RECONSIDERATION
-----------------------------------------------------------------
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
MULLIGAN, Senior Judge:
On 2 October 2017, we granted appellant’s timely motion to reconsider our
earlier decision in which we affirmed the findings and sentence. See United States
v. Collier, ARMY 20160447, 2017 CCA LEXIS 528 (Army Ct. Crim. App. 3 Aug.
2017) (summ. disp.). Upon reconsideration, we do not find a substantial basis in
law and fact to question appellant’s plea. Accordingly, we again affirm the findings
and sentence.
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of violating a lawful general regulation 1
1
Appellant was charged with bringing a concealed, loaded, semi-automatic pistol
and a switchblade knife onto post in violation of local general regulations. When
(continued . . .)
COLLIER—ARMY 20160447
and four specifications of obtaining services under false pretenses, in violation of
Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 934 (2012)
[hereinafter UCMJ]. The convening authority approved the adjudged sentence of a
bad-conduct discharge and 120 days of confinement.
This case is again before us for review pursuant to Article 66, UCMJ.
Appellant’s sole assignment of error and the basis for his request for reconsideration
is that appellant cannot be guilty of theft of services because “the services had no
value.” We first address what is a “service” for purposes of the Article 134, UCMJ,
offense of theft of services. We conclude that a service is the act of doing
something useful for a person in exchange for consideration. We then determine that
while there may be a basis in fact to question the providence of appellant’s plea, it is
not a substantial basis.
BACKGROUND
This case starts with an unusual charging decision by the government. To
summarize, appellant used his duty position to obtain the names and social security
numbers from other soldiers’ leave forms. Appellant used the personal data to apply
for credit cards. For this conduct the government charged appellant with theft of
services, a violation of Article 134, UCMJ. The “service” stolen in this case was a
“line of credit.”
The government did not charge, by way of example, attempted larceny or
identity theft. See UCMJ art. 121; 18 U.S.C. § 1028.
DISCUSSION
A. Is a line of credit a service that can be stolen?
Appellant pleaded guilty to obtaining through false pretenses the service of a
“line of credit.” We will try to dissect what exactly this means.
We begin by discussing that appellant was not charged with stealing. First,
appellant clearly was not charged with stealing any services in using the line of
credit. Appellant never admitted to using the credit cards.
Second, appellant was not charged with stealing the service of requesting or
applying for a line of credit. From the record it appears that applying for credit
cards was a service that was free and open to everyone. Appellant correctly cites
our previous decision in United States v. Sierra, 62 M.J. 539 (Army Ct. Crim. App.
(. . . continued)
appellant stated that he had brought the pistol onto post only because he forgot it
was in his pocket, the military judge excepted out the relevant language and
convicted him only of the switchblade offense.
2
COLLIER—ARMY 20160447
2005), for the proposition that you cannot steal services that have no value.
However, appellant was not charged with stealing the service of “applying” for a
line of credit.
Rather, appellant was charged with obtaining through false pretenses a line of
credit. That is, the existence and provision of the line of credit is the “service.”
This raises what appears to be a question of first impression. Is a company
that provides the opportunity to draw down on a line of credit providing a “service”
under Article 134, UCMJ? The parties did not point us to any case that was directly
on point. Given the unusual charging decision that was not surprising. Our own
research also was not fruitful.
The Manual for Courts-Martial does not define the term “service.” See
Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt. IV,
¶ 78. Black’s Law Dictionary defines a service as “[t]he act of doing something
useful for a person or company, usu[ally] for a fee.” Service, Black’s Law
Dictionary (9th ed. 2009) [hereinafter Black’s]. A “fee” is similarly defined as a
“charge for labor or services. . . .” Fee, Black’s. A “charge” is a “[p]rice, cost, or
expense.” Charge, Black’s. “Price” is likewise defined as the “amount of money or
other consideration asked for or given in exchange for something else.” Price,
Black’s. And finally, “consideration” is “something (such as an act, a forbearance,
or a return promise) bargained for and received by a promisor from a promisee.”
Consideration, Black’s. Accordingly, a service is the act of doing something useful
for a person or corporation in exchange for consideration. 2 This definition is as
useful as any and we adopt it. With that definition in mind, we next ask whether the
line of credit in this case is a service.
1. Is a line of credit “useful?”
Certainly, both individuals and corporations view the ability to draw down on
a line of credit to be something “useful.” The ability to use credit allows persons to
acquire goods and services, to smooth out financial disruptions, and respond to
unexpected or emergent situations. A person who holds a credit card for
emergencies likely views the credit card issuer as providing something of value even
if the card is never used. Perhaps similarly, an insurance policy may never be used,
but that does not mean it has no value to the policy holder.
2. Was the line of credit provided in exchange for consideration?
Whether the service in question is provided in exchange for consideration is
the harder question. Credit card issuers charge fees to both the card holder and to
2
Theft of services does not include the theft of goods or currency. MCM, pt. IV,
¶ 78.c.
3
COLLIER—ARMY 20160447
merchants who accept the card. An “interchange” fee is a percentage of the
transaction between a merchant and the card holder and is charged to the merchant.
Fees directly charged to customers include late payment fees; over limit fees;
payment processing (e.g. telephone payment) fee; cash advance fees; foreign
currency transaction fees; and membership fees. 3
For purposes of our analysis here, a company that issues a credit card can
expect to receive three different types of fees. First, there is the expectation of
future fees charged to merchants whenever the card is used. Second, there is the
expectation of future fees charged to the card holder based on the card holder’s
actions (e.g. not paying an outstanding balance on time). Finally, there is the
“membership” fee that is charged whether the card is used or not.
Of these three categories, only the last one would apply to a card that is never
used for purchases. Membership fees are incurred on a periodic basis (e.g. annually)
and occur regardless of whether the card is used. It would appear many if not most
credit cards do not have membership fees. CFPB, CARD Act Report at 24-25.
However, the incidence of cards with membership fees may be rising. “The
percentage increases [in the number of credit card accounts with membership fees]
were largest for accounts with deep subprime credit scores and increased more
modestly, although still significantly, of the core subprime and prime segments [of
the market].” Id. at 26.
We conclude that the lines of credit associated with credit cards are provided
in exchange for consideration. That is, they are a “service.” While the
consideration may be the promise to pay a future fee or it may be a membership fee
due immediately, the provision of a line of credit is not “free.”
We turn next to whether appellant’s colloquy with the military judge
adequately admitted that this is the offense he committed.
3
“[I]t is important to recognize that the cost of credit has many components.
Consumers who utilize a credit card may pay for that credit in a number of different
ways. Consumers may be charged an annual (or monthly) fee. They may incur
penalty fees if they violate the account terms, most commonly by making a late
payment or a transaction that exceeds his or her credit limit. They may be charged a
variety of other fees such as cash advance fees, balance transfer fees, or foreign
transaction fees. Finally, consumers may pay interest charges.” Consumer Financial
Protection Bureau [hereinafter CFPB], CARD Act Report 1, 18 (1 Oct. 2013),
http://files.consumerfinance.gov/f/201309_cfpb_card-act-report.pdf; see generally
Credit Card Accountability Responsibility and Disclosure Act of 2009 (“CARD
Act”), Pub. L. No. 111-24, 123 Stat. 1734 (2009).
4
COLLIER—ARMY 20160447
B. Is there a substantial basis in fact to question the providence of appellant’s plea?
During the providence inquiry appellant admitted that a line of credit is a
service, that he wrongfully obtained the lines of credit through false pretenses, and
further admitted the value of each of the lines of credit.
For each offense appellant admitted he used other people’s identity (i.e. “false
pretenses”), to obtain the service of a line of credit. In each instance he admitted
that he had actually received the line of credit services when he received notice that
his electronic credit application had been approved. Finally, as to each specification
appellant admitted the value of the service he had stolen. 4
Appellant admitted at trial that he applied for and obtained credit cards in
other soldiers’ names because he was in financial distress and that he did this for his
“financial benefit.” When asked what service he had wrongfully obtained appellant
responded, with regard to one victim, “It was a line of credit in [NH’s] name for
over $500.” Appellant further admitted that he had received confirmation from
Capital One that his fraudulent applications for credit cards had been approved.
The dissent points to an exchange in appellant’s unsworn statement as being
inconsistent with the admissions made by appellant during his guilty plea.
Specifically, appellant stated that he threw away the envelopes containing the credit
cards before he even opened them. However, appellant’s unsworn statement does
not contradict his prior statement that he obtained under false pretenses the lines of
credit when they were electronically approved.
Admittedly, appellant’s responses during the United States v. Care, 18
U.S.C.M.A. 535, 40 C.M.R. 247 (1969), inquiry and his unsworn statement sought to
advance two different purposes. The first set of statements was oriented towards
4
Appellant admitted that the value of each line of credit was the amount of the line
of credit. Value is a question of fact. MCM, pt. IV, ¶ 46.c.(1)(g)(i). Guilty pleas
often involve undeveloped facts. United States v. Jordan, 57 M.J. 236, 238-39
(C.A.A.F. 2002) (“By its nature, a guilty plea case is less likely to have developed
facts . . . . Those facts that are part of the military judge’s providence inquiry are
not subject to the test of adversarial process. We are similarly mindful that a
decision to plead guilty may include a conscious choice by an accused to limit the
nature of the information that would otherwise be disclosed in an adversarial
contest.”). It is possible that in a contested case the value of the service of
providing a line of credit would not be the value of the line of credit. To use our
previous analogy, the value of having an insurance policy in case of some emergency
is not the maximum possible payout of the insurance policy. However, the military
judge was not required to hear facts and determine the actual market value or other
means of valuing the lines of credit. As long as the service had value as a matter of
law, appellant’s admissions of their factual value is sufficient.
5
COLLIER—ARMY 20160447
convincing the military judge that appellant was guilty so that appellant could get
the benefit of the bargain he had struck with the government. By contrast,
appellant’s unsworn statement was aimed at mitigating his offenses so that he could
receive a light sentence. While perhaps aimed at cross purposes, the statements
were not in direct conflict. Our superior court has “[a]ppreciat[ed] the tendency of
persons accused of criminal offenses to rationalize their behavior . . . .” United
States v. McCrimmon, 60 M.J. 145, 152 (C.A.A.F. 2004); United States v. Prater, 32
M.J. 433, 436 (C.M.A. 1991) (rejecting “‘the mere possibility of conflict’ standard
for the more realistic ‘substantial basis’ test”).
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
Judge FEBBO concurs.
WOLFE, Judge, dissenting:
As I find a substantial basis in fact to question the providence of appellant’s
plea I respectfully dissent.
During sentencing the defense counsel elicited the following from appellant
during his unsworn statement.
Q. Okay. Did you do anything at that time to try to
minimize the impact this would have on those Soldiers
whose information you’d used?
A. Yes. As soon as I got the envelopes with the cards
from Capital One, I threw them away, and ---
Q. Did you even open the envelopes?
A. No, ma’am. I didn’t open them or activate them or
anything.
Q. Okay.
A. Just because I didn’t want it—because I know that I
could have affected the individuals to a higher extent, and
I didn’t want to put them in financial hardships like my
family was.
Appellant’s unsworn statement raised several concerns.
6
COLLIER—ARMY 20160447
First, it is unclear whether appellant ever obtained the services he had pleaded
guilty to stealing. Appellant denied even opening the envelopes. It is therefore
unclear how appellant knew the contents of the envelope. Appellant’s unsworn
statement raised the issue of whether he knew, in fact, that the credit applications
appellant had fraudulently applied for had been approved.
Now, as the majority points out, appellant had previously admitted he
received notice that the lines of credit had been electronically approved. But this
just moves the question to what “activating” the lines of credit meant. Had appellant
already obtained the lines of credit but merely did not activate the plastic card? Or,
was appellant’s activation of the card necessary to gain control over the line of
credit and therefore necessary to “obtain” it? This inconsistency was not resolved
by the military judge.
Second, and perhaps more importantly, I am concerned whether this accused
(and likely most accuseds charged in this unusual manner) truly understood the
charges to which he was pleading guilty. The extensive appellate practice and
deliberative process it has taken just to understand what appellant was charged with
(and whether it constitutes a crime) gives me pause.
In United States v. Joseph, Judge Wiss described the role of a court when the
facts of the misconduct do not squarely fit the offense charged.
[W]hen the Government comes before a court of law and
tries to fit a round peg of conduct into a square hole of a
punitive statutory provision, it is not the proper function
of the court to reshape the hole so that it will accept the
peg and, in the process, distort the hole’s character.
Rather, it is the proper limit of the court’s function to
consider whether the hole—politically determined—
already is large enough so that the peg fits within it.
37 M.J. 392, 402 (C.M.A. 1993) (Wiss, J., concurring in the result). Charging theft
of services for appellant’s conduct (instead of identity theft or attempted larceny)
has unnecessarily created appellate litigation.
To continue Judge Wiss’s analogy, I conclude the peg could fit. A round peg
does fit in a square hole provided the hole is big enough. However, in the context of
a guilty plea, I find that appellant did not adequately admit facts necessary to show
that the peg fit. The gallimaufry of issues presented by the charging decision in this
case also necessitated that these same issues be explained to the accused while
entering his plea. The more complex, novel or convoluted the charging decision, the
more carefully the elements and defenses must be explained to the accused.
7
COLLIER—ARMY 20160447
Accordingly, I would set aside appellant’s convictions for stealing services
and authorize a rehearing. 5
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
5
I note appellant does not claim to be innocent. Indeed, in his filings with this court
appellant admits his actions were criminal. Nor does appellant claim that had the
military judge attempted to resolve the inconsistency caused by his unsworn
statement (i.e. the one’s I feel should have been further addressed) that he would
have answered the judge’s inquiry in a manner inconsistent with guilt. Finally,
appellant specifically asks for relief that does not include a rehearing where he can
withdraw his plea. In United States v. Kilgore, 21 U.S.C.M.A. 35, 44 C.M.R. 89(1971), the Army Judge Advocate General certified the issue of whether this court
must find prejudice before setting aside a conviction based on a Care violation.
(That is, what is the relationship between Article 45(a) and Article 59(a), UCMJ).
In other words do we look to see if the Care violation actually effected the
voluntariness or knowingness of appellant’s plea? If, for example, appellant’s
defense counsel had adequately explained to appellant all the issues that I find the
military judge should have explained, would we still be required to set aside the
conviction? However our superior court never decided the certified issue. But see,
e.g., United States v. Felty, 12 M.J. 438 (C.M.A. 1982) overruled by United States v.
Morton, 69 M.J. 12 (C.A.A.F. 2010) (addressing a Care violation through the lens of
Article 59(a), UCMJ, and repudiating the closely related offense doctrine
promulgated by Felty). However, I believe precedent nonetheless requires reversal
in this case. See, e.g., United States v. Blouin, 74 M.J. 247 (C.A.A.F. 2015); United
States v. Moon, 73 M.J. 382 (C.A.A.F. 2014).
8