United States v. Specialist RICKY L. BLUE, JR.

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HAIGHT, PENLAND, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist RICKY L. BLUE, JR.
United States Army, Appellant
ARMY 20131091
Headquarters, 7th Infantry Division
Jeffery Lippert, Military Judge (arraignment)
Brad Bales, Military Judge (trial)
Lieutenant Colonel Michael S. Devine, Staff Judge Advocate
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Yolanda McCray-
Jones, JA; Major Candace N. White Halverson, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie III, JA; Major
Daniel D. Derner, JA; Captain Samuel E. Landes, JA (on brief).
30 December 2015
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of five specifications of larceny and two specifications of
obstructing justice, in violation of Articles 121 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 921 and 934 [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, fifteen months of confinement, and
reduction to the grade of E-1. The convening authority approved the adjudged
sentence.
This case is before us for review under Article 66, UCMJ. Appellant assigns
one error, which does not merit discussion or relief. However, one additional issue
warrants brief discussion and relief.
BLUE – ARMY 20131091
DISCUSSION
With respect to the larceny specifications, appellant was charged with,
pleaded guilty to, and was convicted of stealing distinct military financial
allowances or entitlements, at different duty stations, and throughout different time
frames. Four of the specifications charge appellant with stealing the relevant
military allowance “on divers occasions” throughout the alleged time period.
This very scenario was addressed in United States v. Hines, 73 M.J. 119
(C.A.A.F. 2014). As Hines clarifies, “the formulation of a plan or scheme or the
setting up of a mechanism which, when put into operation, will result in the taking
or diversion of sums of money on a recurring basis, will produce but one crime.” Id.
at 123 (quoting United States v. Billingslea, 603 F.2d 515, 520 (5th Cir. 1979)).
Accordingly, we will amend four of the larceny specifications by removing the
words “on divers occasions.”
CONCLUSION
The court amends the findings of guilty of Specifications 1, 2, 4, and 5 of
Charge I by deleting and dismissing the words “on divers occasions” from those
specifications and AFFIRMS the findings of guilty to those specifications as
amended. The remaining findings of guilty are AFFIRMED. After reassessment of
the sentence in accordance with United States v. Winckelmann, 73 M.J. 11 (C.A.A.F.
2013), and United States v. Sales, 22 M.J. 305 (C.M.A. 1986), the sentence is
AFFIRMED. Not only do we find this reassessed sentence purges any taint from the
abovementioned error, but it is also appropriate. All rights, privileges, and property
of which appellant was deprived by virtue of that portion of the findings being set
aside by this decision are hereby ordered restored.
FOR THE COURT:
FOR THE COURT:
JOHN P. TAITT
JOHN
Chief P. TAITT
Deputy Clerk of Court
Deputy Clerk of Court
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