IN THE CASE OF
UNITED STATES, Appellee
v.
Bertram T. DANIELS, Staff Sergeant
U. S. Air Force, Appellant
No. 01-0607
Crim. App. No. 33761
United States Court of Appeals for the Armed Forces
Argued December 11, 2001
Decided March 15, 2002
SULLIVAN, S.J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Lieutenant Colonel Brandon A. Burnett (argued);
Lieutenant Colonel Beverly B. Knott, Lieutenant Colonel
Timothy W. Murphy, and Major Maria A. Fried (on brief); Major
Jeffrey A. Vires.
For Appellee: Major John D. Douglas (argued); Colonel Anthony
P. Dattilo and Major Lance B. Sigmon (on brief).
Military Judge: W. Thomas Cumbie
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Daniels, 01-0607/AF
Senior Judge SULLIVAN delivered the opinion of the Court.
On April 26 through 29, 1999, appellant was tried by a
general court-martial with officer and enlisted members at
McChord AFB (AFB), Washington. Contrary to his pleas, he was
found guilty of one specification of willful damage to military
property, a C-141B aircraft, and one specification of making a
false official statement, in violation of Articles 108 and 107,
Uniform Code of Military Justice, 10 USC §§ 908 and 907. The
members sentenced him to a bad-conduct discharge, reduction to
pay grade E-1, and forfeiture of all pay and allowances. On July
29, 1999, the convening authority approved the sentence as
adjudged.
The Air Force Court of Criminal Appeals affirmed the findings
of guilty on March 28, 2001. However, it reduced the sentence by
affirming only so much of the sentence as provided for a
bad-conduct discharge, reduction to E-1, and forfeiture of
$632.00 pay per month until the bad-conduct discharge is
executed. United States v. Daniels, No. 33761 (A.F. Ct. Crim.
App. March 28, 2001).
On September 12, 2001, this Court granted review of the
following issue:
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United States v. Daniels, 01-0607/AF
WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT
TO CONVICT APPELLANT OF WILLFULLY DAMAGING
MILITARY PROPERTY.
We hold that, based on the evidence in this case, a rational
trier of fact could have found beyond a reasonable doubt all of
the elements of the offense of willfully damaging military
property, i.e., the nose landing gear inspection window of a
C-141B aircraft. Therefore, we affirm the decision below. See
United States v. Davis, 44 MJ 13, 18-19 (1996); see generally
Jackson v. Virginia, 433 U.S. 307, 319 (1979).
Evidence was admitted in this case that on February 11, 1998,
appellant was a Reservist serving on active duty as a loadmaster
for a flight between Hickam AFB, Hawaii, and Yokota AFB, Japan.1
During that flight, the aircraft failed to pressurize. After an
in-flight inspection of the aircraft, appellant advised the crew
that the number two hatch, an emergency crew escape hatch, was
unsecured. The aircraft returned to Hickam, and the mission was
delayed one day. The next day, the aircraft flew to Yokota.
The second leg of the mission was a return flight from Yokota
to Hickam on February 14, 1998. Again, shortly after takeoff,
the aircraft failed to pressurize, and the pilot, Major Bomar,
1 The flight actually initiated at McChord AFB, Washington.
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United States v. Daniels, 01-0607/AF
made the decision to return to Yokota. Master Sergeant Jones,
the flight engineer, testified that after the aircraft landed,
appellant showed him some screws and asked him if he (Jones) knew
where the screws came from. Jones testified that he thought he
recognized the screws as being from the main landing gear
inspection window. However, they proved to be too long. He then
realized that because of their length, the screws came from the
nose landing gear inspection window.
The nose landing gear inspection window is located behind the
crew's latrine. Master Sergeant Jones and appellant checked the
nose landing gear inspection window and found that only one screw
(of six) was in place. Jones testified that appellant told him
the trashcan in the latrine had been turned over and the screws
were on the floor. A further search of the trashcan turned up an
additional screw, to account for all six required to secure the
window. Major Bomar testified that he determined the cause of
the depressurization problem was the unsecured inspection window.
(R. 107-08, 117)
Staff Sergeant Ray Wallace testified that on February 11
through 14, 1998, he was a loadmaster on the mission from McChord
AFB, Washington, through Hickam AFB, Hawaii, to Yokota AFB,
Japan, and back. Appellant was also a loadmaster on that
mission.
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United States v. Daniels, 01-0607/AF
Sergeant Wallace testified that on the return leg of the
mission (from Yokota to Hickam), he conducted the preflight
inspection of the aircraft, which included checking the crew
latrine for cleanliness and serviceability. He did not see any
screws in the sink or on the floor of the latrine, and there was
no trash in the trashcan. The nose landing gear inspection
window appeared to be in place. He and Staff Sergeant Chris
Wallis, a second member of the crew, then left the aircraft to
get breakfast. Appellant remained with the aircraft.
Sergeant Wallace testified that, after having some breakfast
in the air station terminal, he returned to the aircraft to
conduct a stowaway check. However, he did not personally conduct
a stowaway check in the crew's latrine. At the time he
conducted the inspection, appellant was working in the area
between the crew's latrine and the comfort pallet.2 Because of
the lack of space between the latrine and the comfort pallet, he
pointed to the latrine. Appellant gave him a "thumbs up" and
reached for the door handle. Sergeant Wallace testified that
these gestures made him believe that appellant would check the
latrine.
Sergeant Wallis testified that on the morning of February
14, 1998, he was assigned as the "scanner" for the mission as it
2 The "comfort pallet" is a modular compartment that has
latrines, a refrigerator, and other items for the comfort of
passengers in what is essentially an aircraft configured to haul
cargo.
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United States v. Daniels, 01-0607/AF
left Yokota AFB. (R. 219) As the scanner, he walked around the
aircraft "looking for obvious things" and then began his
preflight inspection of the aircraft. As part of this
inspection, he checked the nose landing gear inspection window
from the outside by physically tapping it. The window was in
place and secure. (R. 220-21)
After these checks, he went back to the terminal to get some
food. When he returned to the aircraft, he made a second
exterior check of the aircraft, put on his communications
headset, and started the engines. After the preflight checks
were complete, he boarded the aircraft and went to the flight
deck.
Sergeant Wallis also testified that after the aircraft took
off, he made an additional interior check to insure that the
aircraft was operating properly. About midway through this
check, appellant informed him that the aircraft, was not
pressurizing. (R. 223) Wallis testified that he immediately
checked the rear doors of the aircraft, as well as other areas.
However, he could not find any opening that might have precluded
proper pressurization. Because the crew was unable to find any
breaks in the integrity of the aircraft, the aircraft commander
returned to Yokota AFB.
As the aircraft crew was waiting on the ground at Yokota, a
maintenance crew inspected the aircraft but could not find the
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United States v. Daniels, 01-0607/AF
problem. Major Bomar called off the flight. Ninety minutes
after the flight had landed again, appellant approached Wallis
and said, "Look what I found," displaying several screws. (R.
224) Appellant did not tell Wallis where he found the screws.
However, Wallis recognized the screws and asked appellant if they
came from the inspection window. Appellant stated: “Nose landing
gear inspection window.” (R. 225)
Appellant initially told Sergeant Wallis that he had gone
into the latrine and found the trashcan tipped over, and that
three screws were on the floor of the latrine and others were in
the trashcan itself. Later (about one-and-a-half hours), he told
Wallis that he had found the screws when he went to use the
latrine and saw them on the floor. However, when Wallis asked
him about the trashcan, appellant appeared not to know what he
was talking about. (R. 225)
Special Agent (SA) Mark Walker of the Office of Special
Investigations (OSI) testified that he was initially directed to
conduct an investigation into the possible tampering with an
aircraft. (R. 253) He inspected the aircraft and found that
screws had been removed from the nose landing gear inspection
window. (R. 255) He interviewed a number of people on the scene,
including appellant. He testified appellant informed him that
after the aircraft returned to Yokota AFB, the crew had inspected
the aircraft. Appellant further told SA Walker that he had
entered the crew latrine to find that the trashcan had been
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United States v. Daniels, 01-0607/AF
turned over, and that three screws were laying on the floor.
After taking a number of photographs of the area, SA Walker
decided to continue the investigation the following day.
The following day, appellant came to the OSI offices. He
was warned of his rights under Article 31(b), UCMJ, 10 USC
§ 831(b), and acknowledged those rights. He agreed to speak with
SA Walker and gave him a statement. During this statement,
appellant reiterated his earlier assertions that he had found the
screws on the floor in the crew's latrine.
SA Tracy Tomlins, also of the OSI, testified that during his
subsequent interview with appellant, he related the same story as
he had given SA Walker. However, about two hours later,
appellant told him that when he learned the aircraft would not
pressurize, he helped conduct an inspection to determine the
cause. Appellant told SA Tomlins that he had entered the crew's
latrine to find the nose landing gear inspection window unsecured
and hanging from one screw. The remaining screws were in the
sink in the latrine. Tomlins further testified that appellant
said he took the screws and simply closed the door with the idea
of handling the matter "in-house." (R. 271)
SA Tomlins then testified appellant said that when the
aircraft landed, he went to the latrine and replaced the screws
in the window. Appellant also told him that when the aircraft
inspection team could not find a cause for the inability to
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United States v. Daniels, 01-0607/AF
pressurize the aircraft, he removed the screws and placed them in
the trashcan. At some later point, he walked into the latrine,
took the screws out of the trashcan, and “show[ed] them to the
maintenance . . . folks.” (R. 272, 276)
— — — —
Appellant was found guilty of willfully damaging military
property of the United States, i.e., a United States Air Force
C-141B aircraft, by “causing the nose landing gear inspection
window to be insecurely housed,” in violation of Article 108,
UCMJ. (Charge Sheet at R. 7.1) The President, in the Manual for
Courts-Martial, has explained the elements of this offense as
follows:
1. That the accused, without proper
authority, damaged. . .certain property in
a certain way. . .;
2. That the property was military
property of the United States;
3. That the damage. . .was willfully
caused by the accused. . .; and
4. That . . .the damage was of a certain
amount.
Para. 32b(2), Part IV, Manual for Courts-Martial, United States
(1995 ed.).3
3 The current version of this Manual provision is identical to
the one in effect at the time of appellant’s court-martial.
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United States v. Daniels, 01-0607/AF
The initial question raised by appellant is whether there was
sufficient evidence in this case that military property was
actually damaged, as required by Article 108, UCMJ. In most
cases, there is proof of visible damage to military property,
such as a broken window in a military vehicle or building.
However, a physical breaking of the property need not always be
shown. See United States v. Ortiz, 24 MJ 164, 170-71 (CMA 1987)
(holding that disengagement of an electrical relay in an anti-
skid system on an F-15 airplane was damage within meaning of
Article 108, UCMJ).
In United States v. Peacock, 24 MJ 410, 411 (CMA 1987), this
Court commented on the requirement for damage under Article 108,
UCMJ, as follows:
Criminal prohibitions against damage,
loss, or spoliation of military property
and stores have a long history in military
law. See generally G. Davis, A Treatise
on the Military Law of the United States
364 (3d ed. 1913); W. Winthrop, Military
Law and Precedents 557-59 (2d ed. 1920
Reprint). In enacting Article 108,
Congress intended to consolidate the
various articles of war protecting
military property and to eliminate certain
technical distinctions between them.
Uniform Code of Military Justice:
Hearings on H.R. 2498 Before a Subcomm. of
the House Comm. on Armed Services, 81st
Cong., lst Sess. 1230 (1949). In doing
so, it intended to continue to offer
special protection to military property
because of its function or role in the
national defense. See United States v.
Schelin, [15 MJ 218, 220 (CMA 1983)]. In
light of the purpose of this statute, the
word “damage” must be reasonably construed
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United States v. Daniels, 01-0607/AF
to mean any change in the condition of the
property which impairs its operational
readiness. See United States v. Ortiz,
supra. Appellant’s act of placing foreign
objects in the fuel tanks impaired their
utility to accomplish the mission of the
Air Force just as much as if he had
punctured these tanks or the tires of the
aircraft which carried them.
(Emphasis added.)
In the present case, there was no evidence of permanent
damage to the aircraft resulting from the removal of the screws
from the nose landing gear inspection window. However, there was
ample evidence that the removal of these screws before or during
the flight of the plane led to its failure to pressurize and
required the commander to terminate the military mission of the
plane. This evidence was provided by the testimony of Major
Bomar (R. 106-08), Sergeant Wallis (R. 208), and appellant’s own
admissions. Under Ortiz and Peacock, both supra, this was
legally sufficient evidence to support his conviction under
Article 108, UCMJ.
The second question raised by appellant is whether there was
sufficient evidence showing that he was the perpetrator of the
charged offense. There was no direct evidence establishing him
as the perpetrator of this offense. No one actually saw him in
the crew latrine removing the screws, and appellant made no
statement admitting that he touched those screws, except as part
of his discovery of the initial damage.
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United States v. Daniels, 01-0607/AF
Nevertheless, there was evidence introduced in this case that
the inspection window was secure when both the loadmaster and
“scanner” checked it some forty-five minutes prior to the flight.
It was also shown that appellant was on the aircraft, ostensibly
preparing for the mission, during the period directly prior to
takeoff, and he indicated to Sergeant Wallace that he would check
the latrine for stowaways. Finally, appellant admitted that he
“found” the screws that should have secured the windows, and he
made inconsistent statements to the flight crew and the OSI as to
what he then did with them. The variations in those statements
could be viewed by the members as evidence of his consciousness
of guilt. See United States v. Elmore, 33 MJ 387, 398 (CMA
1991). On this evidence and the inferences derived therefrom, a
rational trier of fact could have concluded beyond a reasonable
doubt that it was appellant who damaged the aircraft by removing
the screws from the airplane window. United States v. Davis, 44
MJ at 18-19.
The third question raised by appellant is whether the
evidence is legally insufficient because it fails to establish a
motive for appellant to damage the airplane. Final Brief at 8.
Appellant argues that the evidence in this case shows that only
Sergeant Wallace, his fellow crewmember, had a motive to disable
the plane, i.e., his desire to spend more time with a female
passenger at the Yokota Air Base terminal. Id at 9. We disagree
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United States v. Daniels, 01-0607/AF
that such an evidentiary argument rendered appellant’s conviction
legally insufficient.
Proof of motive may be relevant to the question of the
identity of the person who does an act consistent with that
motive. See United States v. Whitner, 51 MJ 457, 460-61 (1999).
However, there is no legal requirement that the Government prove
beyond a reasonable doubt that appellant had a motive to
wrongfully damage military property in order to secure a
conviction of this offense. See Article 108, UCMJ; para. 32b(2),
Part IV, Manual, supra. Accordingly, the existence of evidence
that another airman may have had such a motive to damage the
military airplane did not establish the legal insufficiency of
the case against appellant. See generally Charles E. Torcia,
1 Wharton’s Criminal Law § 89 at 610 (1993).
The decision of the United States Air Force Court of Criminal
Appeals is affirmed.
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