United States v. Permenter ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
STEPHENS, DEERWESTER, and COGLEY
Appellate Military Judges
_________________________
UNITED STATES
Appellant
v.
Rance W. PERMENTER
Sergeant (E-5), U.S. Marine Corps
Appellee
No. 201900258
Decided: 9 March 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Terrance J. Reese
Sentence adjudged 14 May 2019 by a general court-martial convened
at Marine Corps Base Camp Lejeune, North Carolina, consisting of a
military judge sitting alone. Sentence in the Entry of Judgment:
reduction to E-1, confinement for 24 months, and a dishonorable
discharge.
For Appellant:
Lieutenant Commander Christopher K. Riedel, JAGC, USN
For Appellee:
Lieutenant Jennifer M. Joseph JAGC, USN
Judge COGLEY delivered the opinion of the Court, in which Senior
Judge STEPHENS and Judge DEERWESTER joined.
_________________________
United States v. Permenter, NMCCA No. 201900258
Opinion of the Court
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
_________________________
COGLEY, Judge:
Appellant was convicted, consistent with his pleas, of attempted wrongful
sale of military property, conspiracy to steal and wrongfully sell military
property, dereliction of duty for failing to report stolen military property,
violation of a lawful general order by wrongfully possessing an unregistered
firearm in base family housing, wrongful sale of military property, theft of
military and government property, housebreaking, obstructing justice,
adultery, and receiving stolen property in violation of Articles 80, 81, 92, 108,
121, 130, and 134, Uniform Code of Military Justice [UCMJ]. 1
After Appellant raised no assignments of error, this Court specified three
issues:
I. Whether Specifications 2 and 3 of Charge I should be
merged into one specification because they address
the same conspiracy?
II. Whether there is a substantial basis to question the
providence of Appellant’s guilty plea to Specification
1 of Charge VI (willful dereliction of duty) because the
guilty plea inquiry raised a possible defense, to wit:
the privilege against self-incrimination, but the mili-
tary judge did not conduct an adequate inquiry of
this possible defense?
III. Whether there is a substantial basis to question the
providence of Appellant’s guilty plea to Specification
3 of Charge VII (receiving stolen property) because the
guilty plea raised a possible defense, to wit: that the
“actual thief” or a principle to the larceny may not be
found guilty of both stealing and receiving the same
property, but the military judge did not conduct an
adequate inquiry of this possible defense?
1 10 U.S.C. §§ 880, 881, 892, 908, 921, 930, 934. The Government withdrew two
specifications of false official statement, in violation of Article 107, 10 U.S.C. § 907,
after Appellant pleaded not guilty to them.
2
United States v. Permenter, NMCCA No. 201900258
Opinion of the Court
Appellant now requests that we reassess the sentence. We find merit in
all three specified issues, and set aside and dismiss three of the specifications
in our decretal paragraph. After reassessing the sentence, we determine the
sentence would be unchanged. We affirm the remaining findings and the
reassessed sentence.
I. BACKGROUND
Appellant was a military police [MP] officer assigned to patrol Camp
Geiger, North Carolina. Camp Geiger had an unsecured warehouse contain-
ing military property. Appellant conspired with two other MPs, Corporal
[Cpl] Tango 2 and Cpl Hotel, and also with his own wife, to steal the military
property on multiple occasions and sell it to local pawn shops and online.
Appellant also brought another woman into the enterprise with whom he was
having an extra-marital romantic relationship. Appellant entered the
unsecured warehouse and stole property on five or more occasions and later
sold, or attempted to sell, the stolen property. Sometimes Appellant entered
the warehouse alone; other times he entered with one of his co-conspirators.
This scheme began when Appellant and Cpl Hotel were drinking. Appel-
lant told Cpl Hotel about the warehouse that he noticed while making his
rounds. Cpl Hotel—who was already an experienced thief—and Appellant
decided to go to the warehouse to steal military property, a tactical vest and
three sleeping bags. Appellant acted as a lookout, while Cpl Hotel went inside
and stole the items. When they returned to Cpl Hotel’s home, they split up
the gear and agreed to sell to different pawn shops. They also agreed they
could each keep whatever profit they received from the sale of the goods.
At a later date, while on patrol with Cpl Tango, Appellant introduced him
to the unsecured warehouse. The two MPs stole additional military property.
Appellant went back to the unsecured warehouse at least five times to steal
property and was on duty as an MP on three of those occasions. On some of
those occasions, Appellant was joined by Cpl Tango. Appellant also enlisted
his wife to assist him with selling the stolen military property.
Eventually Appellant pleaded guilty to the following charges:
Conspiracy with Cpl Tango to Commit Larceny of Military
Property [Charge I, Specification 1];
2 All names in this opinion, other than those of Appellant, the judges, and counsel
are pseudonyms.
3
United States v. Permenter, NMCCA No. 201900258
Opinion of the Court
Conspiracy with Cpl Hotel to Commit Larceny of Military
Property [Charge I, Specification 2] and Wrongful Sale of Mili-
tary Property [Charge I, Specification 3];
Conspiracy with Appellant’s wife to Commit Wrongful Sale
of Military Property [Charge I, Specification 4];
Housebreaking into the warehouse aboard Camp Geiger
[Charge II];
Larceny of Military Property, that could generally be con-
sidered military-specific items such as sleeping bags, supply
items, and other tactical gear [Charge III, Specification 1];
Larceny of Government Property, that could generally be
considered civilian use items such as power tools [Charge III,
Specification 2];
Wrongful Sale of Military Property to the Southern Trade
Emporium of sleeping bags and other tactical gear [Charge IV,
Specification 1];
Wrongful Sale of Military Property to The Bargain Shop of
sleeping bags [Charge IV, Specification 2];
Attempted Wrongful Sale of Military Property of sleeping
bags to a Criminal Investigation Division [CID] agent [Charge
V];
Dereliction of Duty by willfully failing to report stolen mili-
tary property [Charge VI, Specification 1];
Violating a Lawful General Order by having an unregis-
tered privately owned firearm in his on-base home [Charge VI,
Specification 2];
Obstructing Justice by telling Cpl Tango to “get rid of” sto-
len military property [Charge VII, Specification 1];
Adultery by having sexual intercourse with a woman not
his wife [Charge VII, Specification 2]; and
Receiving stolen military property from Cpl Hotel, which
was one tactical vest and three sleeping bags [Charge VII,
Specification 3].
During the guilty plea, it became apparent there was some overlap in the
Government’s charging scheme. Though the Stipulation of Fact covered the
basic elements of the various specifications, more inquiry was needed. We
now examine whether the conspiracy to commit larceny of military property
4
United States v. Permenter, NMCCA No. 201900258
Opinion of the Court
with Cpl Hotel and the conspiracy to commit the wrongful sale of military
property with Cpl Hotel [Specifications 2 and 3 of Charge I] were part of the
same conspiracy agreement.
The guilty plea also appeared to raise two possible defenses for Appellant.
First, we examine whether Appellant’s duty to report the theft of some of the
military equipment that he himself participated in stealing conflicted with
his right to not incriminate himself [Charge VI, Specification 1]. Second, we
examine when Appellant received stolen property, whether he “received” the
same property he participated in stealing.
II. DISCUSSION
A. Standard of Review
We review a military judge’s decision to accept a guilty plea for abuse of
discretion. 3 Guilty pleas will not be set aside on appeal unless there is “a
substantial basis in law and fact for questioning [such pleas].” 4 “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 we afford significant
deference.” 5
A military judge may not accept a guilty plea unless he determines there
is a sufficient factual basis for every element of the offenses to which the
accused pleaded guilty. 6 The required factual predicate may be established
through inquiry of the accused or through stipulations of fact entered into by
the government. 7 A providence inquiry into a guilty plea must establish that
the accused believes and admits he is guilty of the offense, and the factual
circumstances admitted by the accused objectively support the guilty plea. 8
“[M]ere conclusions of law recited by an accused . . . are insufficient to
3 United States v. Simmons, 63 M.J. 89, 92 (C.A.A.F. 2006).
4 United States v. Phillipe, 63 M.J. 307, 309 (C.A.A.F. 2006) (quoting United
States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).
5 United States v. Caldwell, 72 M.J. 137, 144 (C.A.A.F. 2013) (quoting United
States v. Inabinette, 62 M.J. 320, 322 (C.A.A.F. 2008)).
6 Simmons, 63 M.J. at 92. See also Rule for Courts-Martial [R.C.M.] 910(e),
discussion.
7 United States v. Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011).
8 United States v. Garcia, 44 M.J. 496, 497-98 (C.A.A.F. 1996).
5
United States v. Permenter, NMCCA No. 201900258
Opinion of the Court
provide a factual basis for a guilty plea.” 9 However, we must remain
“cognizant that in guilty-plea cases the quantum of proof is less than that
required at a contested trial.” 10
“In summary we review a judge’s decision to accept a guilty plea for an
abuse of discretion and questions of law arising from the guilty plea de
novo.” 11 “It is possible to have a factually supportable plea, yet still have a
substantial basis in law for questioning it. This might happen where an
accused knowingly admits facts that meet all the elements of an offense, but
nonetheless is not advised of an available defense or states matters incon-
sistent with the plea that are not resolved by the military judge.” 12
B. Specifications 2 and 3 of Charge I Address the Same Conspiracy
“A single agreement to commit multiple offenses ordinarily constitutes a
single conspiracy.” 13 In United States v. Pereira, 14 the Court of Appeals for
the Armed Forces [CAAF] consolidated three specifications alleging
conspiracy to commit murder, robbery, and kidnapping from one agreement. 15
In United States v. Braverman, the Supreme Court explained that whether
the object of a single agreement is to commit one or many crimes, it is the
single agreement which constitutes the conspiracy which the statute
punishes. “The one agreement cannot be taken to be several agreements and
hence several conspiracies.” 16
Appellant and Cpl Hotel made a single agreement to steal the military
property, divide up the items, and sell them to local pawn shops. During the
providence inquiry, the military judge specifically asked whether the two
alleged conspiracies “took place during, like, the same discussion?” 17 The
military judge then repeatedly asked for confirmation from Appellant that
the agreements were part of the same discussion. Appellant confirmed they
9 United States v. Jordan, 57 M.J. 236, 239 (C.A.A.F. 2002) (quoting United
States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996)).
10 United States v. Pinero, 60 M.J. 31, 33 (C.A.A.F. 2004).
11 Inabinette, 62 M.J. at 322.
12 Id. at 322.
13 United States v. Pereira, 53 M.J. 183, 184 (C.A.A.F. 2000).
14 Id.15 Id., see also, Braverman v. United States, 317 U.S. 49 (1942).
16 Braverman, 317 U.S. at 52-3.
17 R. at 112.
6
United States v. Permenter, NMCCA No. 201900258
Opinion of the Court
were. 18 When asked if further inquiry was warranted, the trial counsel
requested clarification as to when the [multiple] conspiracies were discussed.
In response, Appellant admitted there had been a “separate occasion when
[Cpl Hotel] reached out to me. He wanted to go sell the military property on a
specific occasion, which was a weekend we were off, I believe.” 19 This was not
a new and separate conspiracy to commit wrongful sale of military property,
but rather an additional act in furtherance of their original conspiracy to
steal and sell the military property. We find this explanation during the
providence inquiry, including the trial counsel’s attempt at clarification,
revealed there was a later conversation confirming a specific time to further
carry out the existing conspiracy. Appellant’s response did not indicate the
second conversation was the initiation of a new agreement, it was simply a
clarification of the original agreement.
While the Government argues this issue should be resolved through the
application of the doctrine of unreasonable multiplication of charges, we find
as a matter of law that the record, as developed by Appellant’s answers
during the providence inquiry and the contents of the stipulation of fact, only
supports the existence of a single conspiracy. Because these two specifications
concerned the same single agreement, they must be consolidated into one
specification and we take such action in our decretal paragraph.
C. The Specification for Willful Dereliction of Duty Raised the
Defense of Self-Incrimination
The Fifth Amendment to the Constitution states that “No person. . . shall
be compelled in any criminal case to be a witness against himself.” 20 Article
31 states that “No person subject to this chapter may compel any person to
incriminate himself or to answer any question which might tend to incrimi-
nate him.” 21
Under United States v. Inabinette, we must determine 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.” 22 “If an accused sets up matter inconsistent with the plea at any time
during the proceeding, the military judge must either resolve the apparent
18 Id. at 110-13.
19 Id. at 116.
20 U.S. Const. amend V.
21 UCMJ art. 31(a).
22 Inabinette, 62 M.J. at 322.
7
United States v. Permenter, NMCCA No. 201900258
Opinion of the Court
inconsistency or reject the plea.” 23 “An affirmative defense to a charged
offense would, by definition, constitute a matter “inconsistent with the plea”
of guilty and therefore the military judge must resolve the apparent
inconsistency or reject the plea.” 24
During the providence inquiry, Appellant was asked by the military judge
to explain why he thought he was guilty of dereliction of duty for failing to
report “stolen military property” as alleged in Specification 1 of Charge VI.
Appellant initially discussed his failure to report Cpl Tango’s possession of
stolen military property. But the Stipulation of Fact only spoke to a failure to
report Cpl Hotel’s possession and involvement in stolen military property. 25
Later in the providence inquiry, the trial counsel clarified that the specifica-
tion went to Appellant’s failure to report Cpl Hotel’s involvement in stolen
military property.
The military judge asked Appellant if he “also had knowledge that [Cpl
Hotel] had stolen property from the building.” 26 Appellant replied that it was
the “same building” and that “me and him traveled to the same warehouse,
Sir, and we both stole military property.” 27 The trial counsel later argued that
the dereliction of duty regarding Cpl Hotel’s stolen property was because
Appellant knew just prior to the conspiracy agreement, that Cpl Hotel had
stolen military property from the warehouse. But the problem with this
argument is that, it is not sufficiently supported by the facts in this record as
developed by Appellant‘s responses during the providence inquiry and the
contents of the stipulation of fact, this was not entirely clear to Appellant.
The military judge did not clear up the factual foundation for the specifica-
tion. This would have included a clear explanation to Appellant that he may
have a legal defense to this specification because he could not be required to
report criminal conduct that he was himself part of without violating his
right against self-incrimination. 28
As a result, we find the military judge failed to resolve an inconsistency
by not addressing a potential defense to the charge of dereliction of duty.
23 Phillipe, 63 M.J. at 309 (internal citations omitted).
United States v. Hayes, 70 M.J. 454, 458 (C.A.A.F. 2012), citing ARTICLE 45
24
UCMJ, Phillipe 63 M.J. at 309.
25 Pros. Ex. 1 at 15-16.
26 R. at 59.
27 Id.
28 United States v. Castillo, 74 M.J. 160, 165-66 (C.A.A.F. 2015).
8
United States v. Permenter, NMCCA No. 201900258
Opinion of the Court
Therefore, we take action to set aside and dismiss Specification 1 of Charge
IV in our decretal paragraph.
D. There is a Substantial Basis to Question Whether Appellant Can
Be Guilty of Both Stealing and Receiving the Same Property
“Frequently a person found in possession of recently stolen property is
charged both with the larceny of that property and with receiving stolen
property. While such charges may be warranted by exigencies of proof . . . the
general rule is that the trier of fact may not find the accused guilty of both
charges.” 29 In the event an accused is found guilty of both larceny and
receiving stolen property for the same property, the accused is entitled to
have the finding of guilty for receiving stolen property set aside. 30
Specification 1 of Charge III, Larceny of Military Property, details 28
different types of military supply items, such as sleeping bags, gas mask
canisters, and body armor vests. There are a total of 125 stolen items. None
of the items are serialized or individually identified. For example, the
specification alleges that “(20) 3 Season Sleeping Bags, Regular, 2d Genera-
tion” and “(4) Improvised Modular Tactical Vests (IMTV), complete” were
stolen. Specification 3 of Charge VII, Receiving Stolen Property, alleges that
Appellant received “(1) Complete Improvised Modular Tactical Vest (IMTV)”
and “(3) 3 Season Sleeping Bags, Regular, 2d Generation” and did so knowing
they had been stolen, which was conduct to the prejudice of good order and
discipline and of a nature to be service discrediting. No identifying infor-
mation was given about the individual items that Appellant had received to
distinguish them from items he stole.
The military judge and Appellant had a lengthy colloquy concerning his
receipt of the stolen military property. It became clear that the specification
alleged Appellant had “received” stolen military property from Cpl Hotel
when they went to the warehouse together while Appellant acted as the
lookout. Once they were back at Cpl Hotel’s home, he gave Appellant a
portion of the stolen military property, which was the single tactical vest and
the three sleeping bags. It appears from the record that Appellant “received”
the same military property he helped steal.
Again, the military judge failed to explore the possibility of a legal defense
to this specification—specifically, that Appellant could not receive the same
29 United States v. Cartwright, 13 M.J. 174, 175 (C.M.A. 1982) (citing United
States v. Gaddis, 424 U.S. 544, 550 (1976)).
30 Id. at 177-78.
9
United States v. Permenter, NMCCA No. 201900258
Opinion of the Court
property he also stole—and either “resolve the apparent inconsistency or
reject the plea.” 31 For this reason, we find that Specification 3 of Charge VII
(Receiving Stolen Property) should be set aside and dismissed.
E. Sentence Reassessment
We have consolidated Specification 2 [Conspiracy to Commit Larceny of
Military Property] and Specification 3 [Conspiracy to Commit Wrongful Sale
of Military Property] of Charge I into Specification 2 of Charge 1, and
thereafter set aside and dismissed Specification 3 of Charge I. We have also
set aside and dismissed Specification 1 of Charge VI [Dereliction of Duty],
and set aside and dismissed Specification 3 of Charge VII [Receiving Stolen
Property]. Thus, we must determine if we are able to reassess Appellant’s
sentence.
We have “broad discretion” when reassessing sentences. 32 However, we
can only reassess a sentence if we are confident “that, absent any error, the
sentence adjudged would have been of at least a certain severity . . .” 33 A
reassessed sentence must not only “be purged of prejudicial error [but] also
must be ‘appropriate’ for the offense[s] involved.” 34
In determining whether to reassess a sentence or to order a sentencing
rehearing, we consider the factors set forth by CAAF in United States v.
Winckelmann: (1) whether there has been a dramatic change in the penalty
landscape and exposure; (2) the forum of the court-martial; (3) whether the
remaining offenses capture the gravamen of the criminal conduct and
whether significant or aggravating circumstances remain admissible and
relevant; and (4) whether the remaining offenses are the type with which we
as appellate judges have experience and familiarity to reasonably determine
what sentence would have been imposed at trial. 35
Considering all of the Winckelmann factors and the circumstances of this
case, we find that we can reassess the sentence and it is appropriate for us to
do so. The penalty landscape is relatively unchanged, with the maximum
confinement being reduced from 92 years and 6 months to 79 years. And the
remaining offenses capture the same gravamen of criminal conduct and the
31 Phillipe, 63 M.J. at 309.
32 United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013).
33 United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986).
34 Id.35 Winckelmann, 73 M.J. at 15-16.
10
United States v. Permenter, NMCCA No. 201900258
Opinion of the Court
aggravating circumstances, including Appellant’s position as a military police
officer, remain unchanged.
We can confidently and reliably determine that, absent the error, Appel-
lant’s sentence would still include at least reduction to E-1, confinement for
24 months, and a dishonorable discharge. We find this sentence to be an
appropriate punishment for the remaining convictions and this offender—
thus satisfying the requirement for a reassessed sentence both purged of
error and appropriate. 36
III. CONCLUSION
Specification 3 of Charge I is merged into Specification 2 of Charge I.
Thereafter, Specification 3 of Charge I is SET ASIDE and DISMISSED.
Additionally, Specification 1 of Charge VI, and Specification 3 of Charge VII
are SET ASIDE and DISMISSED. The findings for the merged specification
and the remaining findings and the sentence as reassessed are AFFIRMED.
Senior Judge STEPHENS and Judge DEERWESTER Concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
36 Sales, 22 M.J. at 308.
11