United States v. Langford

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, K.M. MCDONALD, D.C. KING
Appellate Military Judges
UNITED STATES OF AMERICA
v.
KEITH E. LANGFORD
MASTER SERGEANT (E-8), U.S. MARINE CORPS
NMCCA 201400423
GENERAL COURT-MARTIAL
Sentence Adjudged: 26 August 2014.
Military Judge: Maj N.A. Martz, USMC.
Convening Authority: Commanding General, II Marine
Expeditionary Force, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj K.G. Phillips,
USMC.
For Appellant: LtCol Richard Viczorek, USMCR.
For Appellee: CDR C. Eric Roper, JAGC, USN.
21 April 2015
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification of conspiracy to commit larceny of military
property of a value of more than $500.00, unlawful entry, and
the sale of military property of more than $500.00; one
specification of sale of military property of more than $500.00;
one specification of larceny of military property of more than
$500.00; and one specification of unlawful entry, in violation
of Articles 81, 108, 121, and 130, Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 908, 921, and 930.
The military judge sentenced the appellant to confinement
for 15 months, reduction to pay grade E-1, forfeiture and all
pay and allowances, and a bad-conduct discharge. The convening
authority (CA) approved the sentence as adjudged and stated:
“[s]ubject to the limitations contained in the Uniform Code of
Military Justice, the Manual for Courts-Martial, applicable
regulations, and this action, the sentence is ordered executed.”
The appellant now asserts two assignments of error: (1)
that the Promulgating Order misstates the findings as to Charge
I as well as the disposition of Charge V, and (2) that the CA
erroneously ordered the bad-conduct discharge executed. We
agree that the promulgating order is erroneous and order
corrective action in our decretal paragraph. To the extent that
the Court-Martial Order (CMO) purports to execute the bad-
conduct discharge, it is a legal nullity. United States v.
Bailey, 68 M.J. 409 (C.A.A.F. 2009).
After carefully considering the record of trial and the
submissions of the parties, we conclude that the findings and
the sentence are otherwise correct in law and fact and that no
error materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.
Background
The appellant pled guilty to several specifications
stemming from a scheme to steal military property from a Marine
supply warehouse and then sell that property to a civilian.
Charge I, the conspiracy offense, originally contained three
specifications, each alleging a different underlying offense of
the conspiracy. However, prior to entry of pleas, finding the
three specifications represented an “unreasonable multiplication
of charges,” the military judge merged these three
specifications into one conspiracy for findings and sentencing
purpose. 1 The merged specification then alleged a conspiracy to
commit larceny of military property, unlawful entry
(housebreaking), and sale of military property. Nonetheless,
when called upon to enter pleas, the appellant entered pleas to
1
Record at 7.
2
each of the original conspiracy specifications. The military
judge immediately clarified that the appellant was actually
entering a guilty plea to the single, merged specification of
Charge I. The appellant also pleaded not guilty to Charge V.
Prior to the military judge announcing his findings, the
Government moved to withdraw the offenses and language to which
the appellant pleaded not guilty without prejudice and stated
that the dismissal would “ripen into prejudice upon
pronouncement of the sentence.” 2 The military judge granted the
motion and found the appellant guilty in accordance with his
clarified pleas. The appellant was shortly thereafter
sentenced, resulting in the dismissal of Charge V ripening into
“with prejudice.”
The report of results of trial (RROT) incorrectly indicated
that the appellant pled and was found guilty to the three
original specifications of Charge I, rather than the merged
single specification. In addition, the RROT correctly noted
that the appellant pleaded not guilty to Charge V and that
Charge V had been withdrawn. However, the RROT omits mention
that dismissal was “with prejudice.” The staff judge advocate’s
recommendation (SJAR) attached the RROT and confirmed that “I
have reviewed the results of trial . . . and it accurately
reflects the charges, findings, and sentence adjudged in this
case[.]” Neither of trial defense counsel’s subsequent clemency
requests noted the errors in the RROT or the SJAR.
The CA’s subsequent court-martial order (CMO) repeats the
errors, incorrectly indicating that the appellant was found
guilty of the three original specifications under Charge I.
Moreover, the CA’s action erroneously indicates that Charge V
was dismissed “without prejudice.” Finally, in his action, the
CA indicated that he had reviewed the record of trial prior to
taking action on this case.
Discussion
A CMO must list the “findings or other disposition of each
charge and specification[.]” RULE FOR COURTS-MARTIAL 1114(c)(1),
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). The parties
concede, and we agree, that the CMO in this case inaccurately
indicates that the appellant was found guilty of three
specifications under Charge I and that Charge V was dismissed
“without prejudice.”
2
Id. at 57.
3
We test error in Court Martial Orders under a harmless-
error standard, United States v. Crumpley, 49 M.J. 538, 539
(N.M.Ct.Crim.App. 1998), and find these errors did not
materially prejudice the appellant’s substantial rights. The
appellant alleges no prejudice resulting from this error, and we
find none. However, the appellant is entitled to accurate
court-martial records. Id. Accordingly, we order the necessary
corrective action in our decretal paragraph.
Conclusion
The findings and sentence as approved by the CA are
affirmed. The supplemental CMO shall correctly reflect the
merger of the three specifications under Charge I, the
appellant’s plea thereto, and the military judge’s finding of
guilty to the merged specification. The order shall also
correctly reflect that Charge V was dismissed “with prejudice.”
For the Court
R.H. TROIDL
Clerk of Court
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