United States v. Hines

UNITED STATES, Appellant

v.

Shawn M. HINES, Sergeant
U.S. Army, Appellee

No. 13-5010

Crim. App. No. 20120024

United States Court of Appeals for the Armed Forces

Argued November 18, 2013

Decided February 24, 2014

RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., and ERDMANN, STUCKY, and OHLSON, JJ., joined.

Counsel

For Appellant: Captain T. Campbell Warner (argued); Colonel
John P. Carrell, Lieutenant Colonel James L. Varley, and Major
Catherine L. Brantley (on brief).

For Appellee: Captain Robert N. Michaels (argued); Colonel
Kevin Boyle, Lieutenant Colonel Jonathan F. Potter, and Major
Jacob D. Bashore (on brief).

Military Judge: Timothy Grammel

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hines, 13-5010/AR

Judge RYAN delivered the opinion of the Court.

Consistent with his pleas, a military judge sitting as a

general court-martial convicted Appellee of two specifications

of making a false official statement, in violation of Article

107, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 907

(2012), two specifications of larceny of military property of a

value more than $500.00, in violation of Article 121, UCMJ, 10

U.S.C. § 921 (2012), and one specification of wrongful

appropriation of military property of a value more than $500.00,

also in violation of Article 121, UCMJ. The adjudged sentence

provided for confinement for a period of three months,

forfeiture of all pay and allowances, reduction to E-1, and a

bad-conduct discharge. The convening authority approved the

adjudged sentence, except for the forfeitures, and ordered all

but the bad-conduct discharge executed.

The values alleged for the three Article 121, UCMJ,

offenses were based on aggregating amounts wrongfully taken over

a period of months at three separate locations. Before the

United States Army Court of Criminal Appeals (ACCA), Appellee

argued that the military judge erred by accepting his pleas to

larceny and wrongful appropriation of military property of a

value over $500.00 when he providently pled only to a value of

less than $500.00. On May 24, 2013, the ACCA agreed, holding

that theft of Basic Allowance for Housing (BAH) and Family

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Separation Allowance (FSA) occurring over multiple months

“amounts to a separate larceny each month the money is

received,” because the receipt of funds did not occur at the

“same time and place.” United States v. Hines, No. ACM

20120024, slip op. at 3 (A. Ct. Crim. App. May 24, 2013)

(citation and internal quotation marks omitted). In the

alternative, it held that the pleas were improvident because the

military judge failed to resolve a matter raised during the

providence inquiry, which was inconsistent with the pleas. The

ACCA thus affirmed findings only to larceny and wrongful

appropriation of military property of a value less than $500.00,

in addition to the Article 107, UCMJ, charge and specifications.

Id. It nonetheless affirmed the sentence, citing United States

v. Sales, 22 M.J. 305 (C.M.A. 1986). Id. at 3–4.

On August 5, 2013, on certification under Article 67(a)(2),

UCMJ, 10 U.S.C. § 867(a)(2) (2012), the Judge Advocate General

of the Army (TJAG) asked this Court to consider the following

questions:

I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN
IT HELD THAT APPELLEE’S PLEAS TO SPECIFICATIONS 1, 2,
AND 3 OF CHARGE II WERE IMPROVIDENT BECAUSE THEFT OF
BASIC ALLOWANCE FOR HOUSING AND FAMILY SEPARATION
ALLOWANCE OCCURRING OVER MULTIPLE MONTHS “AMOUNTS TO A
SEPARATE LARCENY EACH MONTH THE MONEY IS RECEIVED.”

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN
IT HELD THAT APPELLEE’S PLEAS TO SPECIFICATIONS 1 AND
3 OF CHARGE II WERE IMPROVIDENT BECAUSE THE MILITARY
JUDGE “NEVER SATISFACTORILY RESOLVED THE INCONSISTENCY

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BETWEEN [APPELLEE’S] PLEAS TO THE ENTIRE AMOUNT [OF
BASIC ALLOWANCE FOR HOUSING] IN LIGHT OF HIS APPARENT
ENTITLEMENT TO A LESSER AMOUNT.”

We answer both certified questions in the affirmative. As

a threshold matter, we expressly adopt the reasoning and holding

of United States v. Billingslea, 603 F.2d 515, 520 (5th Cir.

1979): “[T]he 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.” Thus, under the circumstances of

this case, each specification properly aggregated money

wrongfully obtained on a recurring basis and alleged a larceny

of military property of a value greater than $500.00.

Moreover, we disagree that the military judge “never

satisfactorily resolved the inconsistency between [Appellee’s]

pleas to the entire amount in light of his apparent entitlement

to a lesser amount.” Hines, No. ACM 20120024, slip op. at 3.

To the extent any inconsistency was interjected into the

providence inquiry, it was definitively resolved when Appellee

noted he had not satisfied any condition precedent to obtain BAH

without dependents (BAH-WITHOUT), and was not entitled to any

BAH.

The decision of the ACCA is reversed.

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United States v. Hines, 13-5010/AR

I. FACTS

On May 27, 2008, Appellee was stationed at Fort Bragg,

North Carolina, when his divorce became final. Before his

divorce, Appellee was receiving BAH at the with-dependent rate

(BAH-WITH) based on his status as a married active duty

servicemember. Although Appellee was obligated to submit

paperwork to finance to alert them to this change in status, he

failed to do so. If he had, he would have stopped receiving

BAH-WITH entitlements immediately. Instead, Appellee collected

BAH-WITH at the Fort Bragg rate from May 27, 2008, until October

19, 2010, when he executed Permanent Change of Station (PCS)

orders. During this time, Appellee received $30,623.27 in BAH-

WITH through monthly payments, each of which exceeded $500.00.

While still at Fort Bragg, Appellee deployed to Afghanistan

in April 2009. Upon arrival in Afghanistan, Appellee completed

DD Form 1561, “Statement to Substantiate Payment of Family

Separation Allowance,” on which he affirmatively certified that

he was not divorced or legally separated from his spouse. As a

result, from April 21, 2009, until June 8, 2010, Appellee

received $3,408.33 in FSA through monthly payments, each of

which was less than $500.00.

When Appellee returned from Afghanistan in June 2010, he

remained at Fort Bragg until October 19, 2010, when he executed

PCS orders to Fort Campbell, Kentucky. When he arrived there,

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Appellee submitted two documents -- DA Form 5960, “Authorization

to Start, Stop, or Change Basic Allowance for Quarters,” and DD

Form 1351-2, “Travel Voucher.” On both documents he stated that

he was married. Because of these documents, Appellee received

BAH-WITH at the Fort Campbell rate totaling $5,328.00 through

monthly payments from October 19, 2010, until April 18, 2011,

each of which was greater than $500.00, with the exception of

the final prorated payment.1

In April 2011, Appellee’s ex-wife contacted officials at

Fort Campbell and reported that she had reason to believe he

continued to claim her as a dependent. The Government then

charged Appellee, as relevant to the certified issues, under

Charge II, with three separate larceny specifications of

military property of a value over $500.00, each occurring over

different periods of time, at the three locations referenced

above, in violation of Article 121, UCMJ. Each specification

alleged that SGT Hines “did . . . steal . . . entitlements,

military property, of a value of more than $500.00.”

1
The PCS benefits for Appellee’s nonexistent spouse appear not
to be included in the larceny offense specification for Fort
Campbell.
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Appellee entered into a pretrial agreement to plead guilty

to all of the specifications as amended, as well as into a

stipulation of fact.2

During the providence inquiry, the military judge explained

to Appellee, inter alia, that in order to be guilty of all of

the Charge II offenses it must be true “that the property

[taken] was of a value of more than $500.[00].” In the course

of both having Appellee describe the facts supporting his guilty

pleas and discussing the stipulation of fact, the military judge

discussed the value of property that Appellee obtained and noted

that he “want[ed] to make sure that the stipulation of fact

[was] correct.” Appellee admitted to larceny and wrongful

appropriation of government property in an amount greater than

$500.00, and confirmed that the amounts of BAH and FSA he

wrongfully received were the total amounts listed in paragraphs

six, eight, and ten of the stipulation of fact.

Appellee also admitted that he was not entitled to receive

any BAH. At both Fort Bragg and Fort Campbell, single soldiers

without dependents are not entitled to BAH-WITHOUT unless they

seek and receive a “Certificate of Non-Availability” (CNA).

Appellee did not apply for a CNA at either location.

2
After discussing the specifications at a Rule for Courts-
Martial (R.C.M.) 802 conference, Charge II, Specification 3, was
amended without objection to reflect the lesser included offense
of wrongful appropriation.
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United States v. Hines, 13-5010/AR

Referencing paragraph nine of the stipulation of fact, the

military judge asked Appellee whether it was correct that “if

you had gone through the channels and requested other

entitlements, like, to live off post and to get [the BAH-

WITHOUT] rate, then it’s likely that you would have . . . been

authorized to do that and obtain that.” Appellee answered the

question in the affirmative and went on to explain that he did

not go through any of the steps necessary to receive BAH-

WITHOUT, and therefore was not entitled to any BAH.

II. ACCA DECISION

On appeal, the ACCA held as a matter of law that charging

the offenses listed under Charge II “as continuing crimes,

aggregating the total amount of money” at each location was

improper and that “theft of BAH, under these circumstances,

amounts to a separate larceny each month the money is received.”

Hines, No. ACM 20120024, slip op. at 2–3.

The ACCA went on to conclude that Appellee “would have been

entitled to the [BAH-WITHOUT] rate” at both Fort Campbell and

Fort Bragg. Id. at 3. As such, “[d]uring the providence

inquiry [Appellee] repeatedly stated that he understood that he

was not entitled to BAH-WITH in a fashion expressing the

understanding that he was entitled to [the BAH-WITHOUT] rate.”

Id. Therefore, the ACCA held that “[Appellee] never

satisfactorily admitted to a single larceny in an amount over

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$500.00 and only providently admitted to a series of separate

larcenies each in an amount less than $500.00.” Id.

III. DISCUSSION

A.

The question whether wrongful receipt of money on a

recurring basis constitutes one crime for the total amount, or

multiple offenses for the amount received in each instance, is a

question of law, which we review de novo. United States v.

Watson, 71 M.J. 54, 56 (C.A.A.F. 2012). We disagree with the

ACCA’s conclusion that there could not be a “continuing larceny

of an aggregated amount” solely because the monthly amounts were

not taken “at substantially the same time and place.” Hines,

No. ACM 20120024, slip op. at 3 (citation and internal quotation

marks omitted). The weight of authority is precisely to the

contrary.

While the Manual for Courts-Martial, United States, pt. IV,

para. 46.c.(1)(h)(ii) (2008 ed.) (MCM) notes that multiple

article larceny is to be charged as a single larceny “[w]hen a

larceny of several articles is committed at substantially the

same time and place,” and the “articles belong to different

persons,” this is merely one, and not the only, situation where

a single charge is proper. That amounts were wrongfully

received on a recurring basis at different times and places

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raises the question whether there was one crime or several

crimes -- it does not end the inquiry.

Instead, whether there were separate offenses each month or

a single offense aggregating all months, turns on the specific

factual circumstances of each case. And that inquiry focuses on

the actor “at or near the starting point of the illegal

activity.” See Billingslea, 603 F.2d at 520. Facts important

to this analysis include “the state of mind or intent of the

actor prior to and simultaneously with the first taking,” and

also, “evidence of acts done by the accused, either in

preparation for the several takings or as [an] integral part of

the first taking, which facilitate the subsequent takings or in

some way aid the defendant in accomplishing them.” Id.

Considering these factors, we agree that “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.; accord United States v. Bolden, 28 M.J. 127, 129 (C.M.A.

1989) (accepting the “theory of [the accused’s] criminal

liability” where the government charged the accused in the

aggregate for “intentionally overstat[ing] the rent he was

paying” to “receive[] each month an allowance greater than he

was entitled to”). “Conversely, if all that can be attributed

to the accused is an original intent to purloin and the evidence

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merely shows that this intent was acted on from time to time,

the nature of the acts must be measured by the separate

takings.”3 Billingslea, 603 F.2d at 520. This approach is

consistent with the approach of other federal courts, which have

also adopted the Billingslea framework. See, e.g., United

States v. Parisien, 413 F.3d 924, 926 (8th Cir. 2005); United

States v. Smith, 373 F.3d 561, 563–64, 568 (4th Cir. 2004);

United States v. Papia, 910 F.2d 1357, 1364–65 (7th Cir. 1990).4

Applying the Billingslea framework to the facts of this

case, we have no trouble concluding that there were two acts of

larceny, and one of wrongful appropriation, each for military

property of a value over $500.00 -- which is what the Government

charged, and what Appellee pleaded guilty to. Appellee’s

3
The authority Appellee cites to suggest that aggregation is
improper is inapposite as all the cases are examples of
situations where the acts must be measured by the separate
takings: each of those cases presents a situation where takings
occurred not merely at different times and places, but also
required distinct and separate acts to effectuate each crime.
See United States v. Mincey, 42 M.J. 376, 377 (C.A.A.F. 1995)
(involving multiple specifications of uttering bad checks);
United States v. Poole, 24 M.J. 539, 541 (C.M.A. 1987)
(involving multiple specifications of uttering bad checks);
United States v. Davis, 16 C.M.A. 207, 208, 36 C.M.R. 363, 364
(1966) (involving representations “on each of several separate
occasions, to different finance officers in different places,
that he was serving” in a higher grade).
4
The Billingslea framework for analysis is better adapted to the
particular circumstances of each case than the more narrow
three-part test developed by the United States Navy-Marine Corps
Court of Criminal Appeals in United States v. Lepresti, 52 M.J.
644, 653 (N-M. Ct. Crim. App. 1999).
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United States v. Hines, 13-5010/AR

wrongful receipt of BAH-WITH at Fort Bragg resulted from his

failure to apprise finance that he no longer had dependents, as

he acknowledged he was obligated to do. It was that failure to

act that provided the means by which Appellee received money to

which he was not entitled on a recurring basis of a total value

over $500.00, as charged in Specification 3.

Similarly, the record is clear that the sole reasons

Appellee received FSA and BAH-WITH of a value over $500.00 in

Specifications 1 and 2 were the affirmative acts of completing

military forms, which fraudulently stated he remained married to

his ex-wife. Appellee completed DD Form 1561 in Afghanistan,

asserting he was married, and knowing that he would receive FSA

during the course of his deployment based on the form. And

Appellee completed DA Form 5960, knowing and intending that he

would receive monthly BAH-WITH at Fort Campbell on a continuing

basis as a result. There is no question that submission of

these forms was the mechanism for “the taking or diversion of

sums of money on a recurring basis.” Billingslea, 603 F.2d at

520.

Under the circumstances of this case, aggregation of the

monthly amounts paid on a recurring basis into three

specifications alleging a value over $500.00, where there were

three distinct mechanisms by which money was wrongfully received

at three different locations, was appropriate. Accord R.C.M.

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307(c)(4) (“What is substantially one transaction should not be

made the basis for an unreasonable multiplication of charges

against one person.”).

B.

Appellee argues in the alternative, and the ACCA held, that

the providence inquiry and stipulation of fact set up a matter

inconsistent with his pleas that the military judge did not

satisfactorily resolve. We disagree.

“‘In determining whether a guilty plea is provident, the

military judge may consider the facts contained in the

stipulation [of fact] along with the inquiry of [Appellee] on

the record.’” United States v. Whitaker, 72 M.J. 292, 293

(C.A.A.F. 2013) (first alteration in original) (citation

omitted). “If an accused ‘sets up matter inconsistent with the

plea’ at any time during the proceeding, the military judge must

either resolve the apparent inconsistency or reject the plea.”

United States v. Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011)

(citation and internal quotation marks omitted). “This court

must find ‘a substantial conflict between the plea and the

accused’s statements or other evidence’ in order to set aside a

guilty plea. The ‘mere possibility’ of a conflict is not

sufficient.” Watson, 71 M.J. at 58 (citation omitted).

Appellee argues, consistent with the ACCA’s holding, that

the military judge abused his discretion because he “never

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United States v. Hines, 13-5010/AR

satisfactorily resolved the inconsistency between [Appellee]’s

pleas to the entire amount [of BAH in an amount over $500.00] in

light of his apparent entitlement to a lesser amount.” Hines,

No. ACM 20120024, slip op. at 3. The assertion is that an

inconsistency was established during the providence inquiry with

respect to the value of the entitlements obtained at both Fort

Campbell and Fort Bragg since Appellee was theoretically

entitled to the BAH-WITHOUT rate, as opposed to not being

entitled to any BAH, and the monthly difference between BAH-WITH

and BAH-WITHOUT was less than $500.00.5 Id.

There is an obvious flaw with the reasoning behind this

portion of the ACCA opinion. While the discussion of

theoretical entitlement to BAH-WITHOUT contained in paragraph

nine of the stipulation of fact raised more questions than it

answered, the same stipulation of fact made very clear that the

condition precedent for being entitled to any BAH -- seeking and

receiving a CNA -- had not been fulfilled.

And while the ACCA opined that Appellee “repeatedly stated

that he understood that he was not entitled to BAH–WITH in a

fashion expressing the understanding that he was entitled to

[the BAH-WITHOUT] rate,” Hines, No. ACM 20120024, slip op. at 3,

5
In a sense this is irrelevant because the factual circumstances
of this case permitted aggregation of the monthly totals at each
location into a single specification. Once aggregated, even the
difference between BAH-WITH and BAH-WITHOUT would be well in
excess of $500.00.
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the record is precisely to the contrary. In the providence

inquiry, Appellee admitted that he was not entitled to any BAH.

Additionally, when asked to state the amount wrongfully taken at

both Fort Campbell and Fort Bragg, Appellee cited the entire

aggregate amount of BAH-WITH, rather than the difference between

the BAH-WITH and BAH-WITHOUT rate, and stated that each amount

was over $500.00.

To the extent that any inconsistency was raised by

paragraph nine of the stipulation of fact, it was fully resolved

by the military judge during the providence inquiry.

IV. DECISION

The decision of the United States Army Court of Criminal

Appeals is reversed and the record of trial is returned to the

Judge Advocate General of the Army for remand to the Court of

Criminal Appeals for further proceedings under Article 66, UCMJ,

10 U.S.C. § 866 (2012).

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