United States v. Russell

Judge CRAWFORD

delivered the opinion of the Court.

Pursuant to his pleas, appellant was convicted of dereliction of duty, false official statement, wrongful disposition of military property, obstruction of justice, and larceny of military property (8 specifications), in violation of Articles 92, 107, 108, 134, and 121, Uniform Code of Military Justice, 10 USC §§ 892, 907, 908, 934, and 921, respectively. Fourteen larceny specifications were withdrawn as part of the pretrial agreement. The convening authority approved the sentence of a dishonorable discharge, 24 months’ confinement, partial forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.

We specified the following issue:

WHETHER, AS A MATTER OF LAW, PROPERTY WHICH APPELLANT PURCHASED WITH A GOVERNMENT CREDIT CARD, WHICH PROPERTY WAS NEVER REQUESTED, AUTHORIZED, USED, OR POSSESSED BY THE ARMED FORCES, WAS “MILITARY PROPERTY,” AND WHETHER APPELLANT’S RELATED PLEAS OF GUILTY TO SPECIFICATIONS 5, 8, 9, AND 19 OF CHARGE I, AND THE SPECIFICATION OF CHARGE IV WERE PROVIDENT.

We hold that appellant’s pleas were provident.

FACTS

Appellant used a government Visa card to make purchases when there was no requisition form. Some of these items he would take to his workplace; others he would take directly from the civilian source to his quarters, never intending them to be turned over to the Government.

During the providence inquiry, the judge asked whether, and appellant admitted that each item was “military property.” Each of these inquiries was focused on the nature of the property and whether the items purchased were items that “the Air Force had a use for, [or] could have used” to operate its refrigeration systems.

The question in this case is whether these items were legitimately military property, and if not, whether there is substantial variation in the maximum punishment so as to have an impact on the pleas. If the property stolen was not military property, the maximum punishment would be reduced from 735£ years to 48 years. See paras. 32e(l)(b) and 46e(l)(a)-(d), Part IV, Manual for Courts-Martial, United States (1998 ed.).

The defense argues that appellant’s pleas were improvident because the property he confessed to stealing and disposing of was not “military property.” The Government argues that the Air Force gained constructive possession of the property at the time of the purchases. Alternatively, the Government argues that, in any event, the pleas were provident.

DISCUSSION

This Court has held on numerous occasions that it will not set aside a guilty plea unless there is a “substantial basis” in law and fact for questioning the plea. United States v. Prater, 32 MJ 433, 436 (1991).

Paragraph 32e(l), Part IV, Manual, supra, defines military property as “all property, real or personal, owned, held, or used by one of the armed forces of the United States.” In this case, appellant admitted that each item stolen was military property that was used by the Air Force in its refrigeration systems. His answers are consistent with our understanding of the meaning of that term. See United States v. Dailey, 37 MJ 463, 464 (CMA 1993) (larceny of quarters allowance is larceny of military property of the United States); United States v. Hemingway, 36 MJ 349, 352 (CMA 1993) (theft of United States treasury checks from the finance office constituted theft of military property because “appropriated funds belonging to the United States Army — even if only being ‘held’ by the Army for immediate disbursement to any individual soldier for duty travel — are within the meaning of ‘military property of the United States’ ”).

Thus, we hold that there is no substantial evidence in the record that contradicts appellant’s responses to the military judge concerning the character of the stolen items as military property. We will not allow appellant to throw a penalty flag and prevail after he has admitted on the record to each element of the charged offenses which remain uncontradicted to date.

The decision of the United States Air Force Court of Criminal Appeals is affirmed.