United States v. Barton , 2004 CAAF LEXIS 606 ( 2004 )

UNITED STATES, Appellee
v.
Franklin M. BARTON, Hospitalman
U.S. Navy, Appellant
No. 03-0272
Crim. App. No. 200100732
United States Court of Appeals for the Armed Forces
Argued November 18, 2003
Decided June 28, 2004
BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, and EFFRON, JJ., joined. ERDMANN, J.,
filed a dissenting opinion.
Counsel
For Appellant: Lieutenant Rebecca S. Snyder, JAGC,
USNR (argued).
For Appellee: Lieutenant Christopher J. Hajec, JAGC, USNR
(argued); Commander Robert P. Taishoff, JAGC, USN, and
Lieutenant Lori McCurdy, JAGC, USNR (on brief); Colonel Rose M.
Favors, USMC.
Military Judge: E. B. Stone
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Barton, No. 03-0272/NA
Judge BAKER delivered the opinion of the Court.
On August 4, 2000, at Okinawa, Japan, Appellant was tried by
a general court-martial composed of a military judge alone.
Consistent with his pleas, Appellant was convicted of three
specifications of conspiracy to commit larceny, two
specifications of failure to obey a lawful general order, three
specifications of larceny, and four specifications of
housebreaking, in violation of Articles 81, 92, 121, and 130,
Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C.
§§ 881, 892, 921, and 930 (2000), respectively. He was
sentenced to a bad-conduct discharge, confinement for two years,
total forfeiture of all pay and allowances, and reduction to the
lowest enlisted grade. On April 5, 2001, in accordance with a
pretrial agreement, the convening authority approved the
sentence but suspended all confinement in excess of twelve
months. On October 31, 2002, the Navy-Marine Corps Court of
Criminal Appeals affirmed the findings of guilty and the
sentence in an unpublished opinion. United States v. Barton,
NMCM 200100732 (N-M. Ct. Crim. App. 2002).
This Court granted review of the following issue:
WHETHER THE LOWER COURT ERRED IN FINDING
APPELLANT’S PLEA OF GUILTY TO SPECIFICATION
2 OF CHARGE I PROVIDENT WHERE THE MILITARY
JUDGE FAILED TO ELICIT A FACTUAL BASIS FROM
THE ACCUSED THAT THE OBJECT OF THE
CONSPIRACY WAS LARCENY OF MERCHANDISE OF A
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VALUE OF MORE THAN $100 (AS OPPOSED TO
LARCENY OF MERCHANDISE OF SOME VALUE).
Facts
The stipulated facts pertinent to the granted issue reveal
that Appellant and several other enlisted men engaged in a
series of break-ins at Kadena Air Force Base and Camp Hansen on
the island of Okinawa. Two of these break-ins included the
Powerzone, an electronics store on Camp Hansen. On June 21,
2000, Appellant along with two other enlisted men broke into the
Powerzone with the intent to steal merchandise. The theft was
unsuccessful, however, since one of the internal building doors
was locked. Appellant and his co-conspirators returned to the
Powerzone on June 22, 2000, broke in, and stole approximately
$10,000 worth of electronic equipment including watches,
camcorders, compact discs, video games, and DVDs.
These events gave rise to Charge I, which contained three
specifications of conspiracy. Each of the three specifications
alleged that the object of the conspiracy was larceny of goods
with a value in excess $100. Prior to explaining each of the
offenses, the judge requested that Appellant keep the charge
sheet in front of him so Appellant could “follow along on your
copy of the charge sheet as I list the elements of the offenses
for you.” During the Care inquiry of Charge I, Specification 1,
the judge defined and explained the four elements of larceny as
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United States v. Barton, No. 03-0272/NA
they pertained to Appellant’s specification, including the
required dollar amount. See United States v. Care, 18 C.M.A.
535, 40 C.M.R. 247 (1969). After describing the elements
involved in Specification 1, the judge asked Appellant, “Do you
understand the elements of the offense of larceny[?]” Appellant
responded, “Yes, sir.” The judge further questioned Appellant
about the elements.
Numerous specifications on this charge sheet would
normally require me to advise you again and again of
the crime—the elements of the crime of larceny and the
definitions associated with that crime. In the
interest of time, we could dispense with me reading
that to you over and over again if you can assure me
that you understand the elements of the crime of
larceny and the definitions that I have given you. Do
you understand all of those elements for sure and
those definitions?
At the completion of the judge’s question, Appellant once
again responded, “Yes, sir.” The judge also advised Appellant
that if he got confused about any of the elements or definitions
he should stop the judge.
The military judge asked Appellant if he would like to have
the elements of larceny restated prior to his inquiry with
respect to Specification 2, which concerned the alleged
conspiracy to commit larceny of goods with a value in excess of
$100 from Powerzone on June 21, 2000. The judge noted, “The
only difference between that set of elements that I gave you
earlier and the elements that apply to this offense is the owner
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United States v. Barton, No. 03-0272/NA
of the property alleged. In this specification, the owner of
the property is alleged to be the Power Zone (sic).” At that
time, Appellant once again acknowledged that he understood the
elements of larceny as they applied to his case. The same
procedure was followed regarding the third specification of
conspiracy in Charge I, which resulted in the larceny of goods
valued over $10,000 from Powerzone. At the close of the Care
inquiry, the judge ultimately asked Appellant whether Appellant
believed and admitted that “taken together” the elements,
stipulation of fact, and the Care discussion described what
Appellant had done “on each occasion?” Appellant responded,
“Yes, Sir.”
Appellant argues that his plea to Specification 2 of Charge
1 lacks a factual basis substantiating each element of the
offense. In particular, Appellant argues that nowhere in the
Care inquiry did he admit to conspiring to steal property of a
value more than $100 on June 21, 2000. Nor can such a factual
predicate be inferred from the elements of other offenses for
which Appellant was charged and to which he providently pleaded.
According to Appellant, the fact that he stole $10,000 in
merchandise from the store on June 22, 2000, does not establish
that he conspired to steal over $100 in merchandise from the
same store one day earlier. In short, a plea must stand on its
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United States v. Barton, No. 03-0272/NA
own four legs, with a factual basis for each element of each
offense.
The Government responds that the record as a whole
establishes each element of the offense. Further, there is
nothing in the record that suggests Appellant’s plea to this
offense was not knowing, voluntary, or complete. Appellant
understood the value of the merchandise in question and admitted
to this element of the offense. Thus, the purpose of Care and
its progeny are satisfied.
Discussion
“[A] guilty plea is an admission of all the elements of a
formal criminal charge[.]” Id. at 539, 40 C.M.R. at 251
(quoting McCarthy v. United States, 394 U.S. 459, 466 (1969)).
Therefore, before accepting a guilty plea, a military judge must
explain the elements of the offense and ensure that a factual
basis for each element exists. United States v. Faircloth, 45
M.J. 172, 174 (C.A.A.F. 1996). “It is not enough to elicit
legal conclusions. The military judge must elicit facts to
support the plea of guilty.” United States v. Jordan, 57 M.J.
236, 238 (C.A.A.F. 2002)(citing United States v. Outhier, 45
M.J. 326, 331 (C.A.A.F. 1996)). This factual predicate is
sufficiently established if “the factual circumstances as
revealed by the accused himself objectively support that plea .
. . .” United States v. Davenport, 9 M.J. 364, 367 (C.M.A.
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United States v. Barton, No. 03-0272/NA
1980). As a result, “the issue must be analyzed in terms of
providence of his plea not sufficiency of the evidence.”
Faircloth, 45 M.J. at 174.
When considering the adequacy of the plea, this Court
considers the entire record to determine whether the dictates of
Article 45, UCMJ, 10 U.S.C. § 845 (2000), Rule for Courts-
Martial 910, and Care and its progeny have been met. Jordan, 57
M.J. at 239. We will not overturn the acceptance of a guilty
plea unless there is a “substantial basis in law and fact for”
doing so. United States v. Prater, 32 M.J. 433, 436 (C.M.A.
1991).
In the specification at issue, Appellant was charged with
conspiracy to commit larceny of property with value more than
$100. The specific elements of larceny are specified in the
Manual for Courts-Martial, United States (2002 ed.) [hereinafter
MCM], Part IV, para. 46.b.(1):
(a) That the accused wrongfully took, obtained, or
withheld certain property from the possession of the
owner or of any other person;
(b) That the property belonged to a certain person;
(c) That the property was of a certain value, or of some
value; and
(d) That the taking, obtaining, or withholding by the
accused was with the intent permanently to deprive or
defraud another person of the use and benefit of the
property or permanently to appropriate the property
for the use of the accused of for any person other
than the owner.
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Article 121 provides for gradations in the maximum sentence
depending on the value and type of the property in question.∗
Appellant was charged with three specifications of larceny
and conspiracy to commit larceny. “In the interest of time,”
the judge elected not to repeat the elements for each offense
during his Care inquiry, but rather established the relationship
of fact to law by cross-referencing his predicate statement of
elements. As a result, at no point during the Care inquiry
regarding Specification 2 did Appellant admit in declaratory
fashion that he intended to steal more than $100 in merchandise.
Nor did the stipulation of fact specify the value in question.
Rather, any such admission must be found in Appellant’s
acknowledgement that he understood the elements of Specification
2, which included a value of more than $100, and that his
conduct fit the elements of larceny.
Although we may have doubts that a similar methodology of
cross-reference will work generally, it did not amount to error
in this case. Reviewing the Care inquiry in whole, we are
satisfied that Appellant understood the elements of conspiracy
to commit larceny, understood that the elements included a
∗
At the time of trial, Article 121 allowed increased punishment
for the larceny of property in excess of $100. Manual for
Courts-Martial, United States (2000 ed.), Part IV, para.
46.e.(1). Article 121 now provides increased punishment for
property in excess of $500. MCM, (2002 ed.), Part IV, para.
46.(e).(1)(a).
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property valuation of over $100, and affirmatively admitted to
the military judge that his actions satisfied this element of
the offense. First, when the judge listed the elements at the
outset, Appellant told the judge that he understood the elements
of larceny, including the $100 value requirement. Moreover, the
judge did not take “yes” for an answer, but took care to test
the answer and asked Appellant whether he in fact understood the
elements and understood that he could ask for them to be
repeated at any time. Further, the judge required Appellant to
follow along during the Care inquiry using his charge sheet.
Because Specification 2 contained the phrase “of a value more
than $100.00,” and the judge informed Appellant of this element,
it is reasonable to conclude that Appellant was aware of the
elements to which he was pleading.
In reaching this conclusion, we are cognizant that we are
considering element (c), property of a value more than $100.
See MCM, Part IV, para. 46.b.(1)(c). This is not a complex
legal element. An understanding of this element does not
require an intricate application of law to fact. Moreover,
Appellant’s admission to this element involved more than simply
his agreement with a legal conclusion, as the element itself
contains a specific factual threshold. Therefore, Appellant’s
admission to this element was an admission to law and fact.
Thus, this case is distinguishable from Jordan, where the
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United States v. Barton, No. 03-0272/NA
Appellant was asked for a legal conclusion as to whether his
conduct was service discrediting, without explanation as to why
leaning on a boat might fit that legal element. 57 M.J. at 239.
This case is also distinguishable from United States v.
Hardeman, for Appellant did not say anything during the Care
inquiry that was factually inconsistent with the charged offense
or an admission of guilt to that offense. 59 M.J. 389 (C.A.A.F.
2004). Nor is this a case where Appellant has pleaded guilty to
something he factually did not do as was the case in United
States v. Pinero, M.J. ___ (C.A.A.F. 2004)(attempting to
plead to a continuous unauthorized absence when the record
established an interrupted period of absence). The question
here, is whether the record says enough to objectively support
an admission to each element of the offense.
We cannot lose sight that this is a guilty plea case. As
this Court indicated in Jordan, “a guilty plea case is less
likely to have developed facts . . . .” Jordan, 57 M.J. at 238.
With the benefit of appellate hindsight, one might well identify
questions unasked or be tempted to look for the factual
development that only a contested trial might contain.
At the same time, we cannot lose sight that in a guilty
plea case the Care inquiry is a substitute for a contested
trial. 18 C.M.A. 535, 40 C.M.R. 247. By pleading guilty, an
accused is relinquishing significant constitutional rights. He
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also spares the victim and the government the costs and
consequences of a trial. As a result, Appellant’s desire to
plead guilty should not obscure the necessity of establishing
each element to each offense; speed and economy must cede to
care.
For the reasons stated above, we are satisfied that each
element of Specification 2 of Charge 1 was established.
Therefore, there is no substantial basis in law and fact to
question Appellant’s guilty plea to Specification 2.
Conclusion
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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ERDMANN, J. dissenting:
I respectfully dissent. In my view, there is an inadequate
factual basis to support Appellant’s plea of guilty to
conspiracy to commit larceny of merchandise of a value of more
than $100. As I believe that there is an adequate factual basis
to support a plea to conspiracy to commit larceny of merchandise
of some value, I would affirm the guilty plea to that extent. I
would further find that the error was harmless with respect to
the sentence and affirm the sentence.
The charges and specifications relating to conspiracy and
larceny include:1 conspiracy to commit larceny and larceny of
merchandise of a value of more than $100 from the Kadena Tennis
Pro Shop on May 27 and 28, 2000; conspiracy to commit larceny of
merchandise with a value of over $100 in regard to an attempted
larceny from the Powerzone on June 21, 2000; and conspiracy to
commit larceny and larceny of merchandise with a value over $100
from the Powerzone on June 22.
The specification that is the subject of this appeal is the
conspiracy to commit larceny from the Powerzone on June 21.
Although Appellant and his co-conspirators were successful on
1
Appellant was charged with three specifications of conspiracy
to commit larceny; two specifications of violating a lawful
order (consuming alcohol under the age of 21); three
specifications of larceny; and four specifications of
housebreaking.
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United States v. Barton, No. 03-0272/NA
that date in entering the building in which the Powerzone was
located, they were unable to gain entry to the Powerzone itself.
Therefore, unlike the conspiracy charges relating to the larceny
from the Kadena Tennis Pro Shop and the June 22 larceny from the
Powerzone, there was no successful larceny of the Powerzone on
June 21, 2000 and consequently no merchandise was taken.
Perhaps because there was no successful completion of this
conspiracy to commit larceny, there was no exchange between the
military judge and Appellant concerning the value of merchandise
that he and his co-conspirators intended to steal from the
Powerzone on June 21. Indeed the majority recognizes that “at
no point during Appellant’s providence inquiry regarding
Specification 2 did Appellant admit in declaratory fashion that
he intended to steal more than $100 in merchandise. Nor did the
stipulation of fact specify the value in question.” ____ M.J.
at (8).
In order to find a factual basis that Appellant intended to
steal merchandise of a value of more than $100, the majority
notes: “[A]ny such admission must be found in Appellant’s
acknowledgement that he understood the elements of Specification
2, which included a value of more than $100[.]” __ M.J. at (9).
In United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.
2002), this Court set forth a comprehensive overview of the
legal requirements in a providence inquiry:
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To guard against improvident pleas under Article 45, RCM
910(e), Manual, supra, provides: “The military judge shall
not accept a plea of guilty without making such inquiry of
the accused as shall satisfy the military judge that there
is a factual basis for the plea.” In order to establish an
adequate factual predicate for a guilty plea, the military
judge must elicit “factual circumstances as revealed by the
accused himself [that] objectively support that plea[.]”
United States v. Davenport, 9 MJ 364, 367 (CMA 1980). It
is not enough to elicit legal conclusions. The military
judge must elicit facts to support the pleas of guilty.
United States v. Outhier, 45 MJ 326, 331 (1996). The
record of trial must reflect not only that the elements of
each offense charged have been explained to the accused,
but also “make clear the basis for a determination by the
military trial judge . . . whether the acts or the
omissions of the accused constitute the offense or offenses
to which he is pleading guilty.” United States v. Care, 18
USCMA 535, 541, 40 CMR 247, 253 (1969).
Upon appellate review, this Court will not overturn a
guilty plea unless there is a substantial basis in law and fact
for questioning the providence of the plea. United States v.
Russell, 50 M.J. 99, 100 (C.A.A.F. 1999); United States v.
Prater, 32 M.J. 433, 436 (C.M.A. 1991). We will consider the
whole record, including references to a stipulation of fact, to
find that a guilty plea inquiry is adequate. See, e.g., United
States v. Sweet, 42 M.J. 183 (C.A.A.F. 1995).
Looking at the entire record in this case, there is no
discussion with Appellant as to whether he intended to steal
more than $100 in merchandise from the Powerzone on June 21.
There is no reference to the value of this merchandise in the
stipulated facts. The only basis that can be found is the
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United States v. Barton, No. 03-0272/NA
following statement of the military judge, after he listed the
elements of larceny in regard to Charge 1, Specification 1:2
Okay, Numerous specifications on this charge sheet would
normally require me to advise you again and again of the
crime -- - the elements and the definitions associated with
that crime. In the interest of time, we could dispense
with me reading that to you over and over again if you can
assure me that you understand the elements of the crime of
larceny and the definitions that I have given you.
Appellant responded, “Yes, Sir.” to the military judge’s
question as to whether he understood the elements and
definitions. The mere recitation of the elements of a crime,
however, and an accused’s rote response is simply not sufficient
to meet the requirements of Article 45, Uniform Code of Military
Justice, 10 U.S.C. § 845 (2000), United States v. Care, 18
C.M.A. 535, 40 C.M.R. 247 (1969) and its progeny, or Rule for
Courts-Martial 910 [hereinafter R.C.M.]. In recognition of this
requirement, the military judge revisited Charge I,
Specification 1 and specifically elicited Appellant’s response
to each element, including that the merchandise had a value of
more than $100. The military judge failed to conduct a similar
inquiry for Specification 2.
Because of the requirement for notice pleading in military
practice, the specifications of charged offenses must contain
factual allegations. See R.C.M. 307(c)(3). In turn, a military
2
Charge I, Specification 1 charged conspiracy to commit larceny
of the Kadena Tennis Pro Shop on May 27, 2000.
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United States v. Barton, No. 03-0272/NA
judge recites these factual allegations within the elements of
offenses during a guilty plea inquiry. I am not aware of a post
Care case that found an adequate factual basis for a guilty plea
solely from an accused’s acknowledgement of the elements of an
offense. “[T]he military judge must elicit ‘factual
circumstances as revealed by the accused himself’[.]” Jordan,
57 M.J. at 238 (quoting United States v. Davenport, 9 M.J. 364,
367 (C.M.A. 1980)). Appellant himself revealed nothing about
value and nothing about his specific intent to steal items of a
value of over $100.3
Appellant’s specific intent to steal merchandise of a value
of more than $100 related directly to the maximum punishment.
At the time of Appellant’s trial, the maximum sentence for
larceny of property of a value of more than $100 included five
years confinement, whereas larceny of property of a value of
$100 or less included confinement for only six months. See
Manual for Courts-Martial, United States (2000 ed.), Part IV,
para. 46.e.(1)(a)-(b). This distinction in the maximum
3
A common sense review would lead one to the conclusion that
Appellant was unlikely to conspire to steal less than $100 from
the Powerzone – a conclusion that is supported by the fact that
when Appellant was ultimately successful in breaking into the
Powerzone, he and his co-conspirators stole approximately
$10,000 in merchandise. Common sense, however useful as it is
in approaching a variety of legal issues, is not a substitute
for the requirement that the record must contain the factual
basis for a guilty plea.
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punishment applies also to the offense of conspiracy to commit
larceny. Manual for Courts-Martial, United States (2002 ed.),
Part IV, para. 5.e. The issue on appeal in this case did not
merely involve a simple fact, but rather involved a distinction
of consequence that was not developed properly on the record of
trial.
This providence inquiry fails to meet the requirements of
Article 45, Care and its progeny or R.C.M. 910. There is simply
no factual predicate based upon questioning of the accused, the
stipulation, or other facts in the record that establishes
Appellant intended to steal property of a value over $100. The
omission here is substantial.
I would affirm only so much of the finding of guilty of
Specification 2 of Charge I as provides that Appellant conspired
to commit larceny of merchandise of some value. However, as I
am convinced that Appellant suffered no substantial prejudice
with respect to sentencing, I would affirm the sentence.
6