United States v. Caldwell

Judge PERLAK,

joined by Judge PAYTON-O’BRIEN, (concurring in part and dissenting in part):

I respectfully dissent from so much of the majority opinion as affirms the finding of guilty for the charge and specification under Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921, larceny.

We review a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo. If there is a substantial basis in either law or fact for questioning the plea, then we may set aside a finding of guilty based on the plea. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.2008). Following United States v. Ferguson, 68 M.J. 431 (C.A.A.F.2010), United States v. Care, 40 C.M.R. 247, 1969 WL 6059 (C.M.A.1969), and Article 45(a), UCMJ, 10 U.S.C. § 845(a), I am left with a substantial basis in both law and fact and would set aside this guilty finding.

The providence inquiry in this case covers approximately 25 pages of transcript for the simple theft of a men’s belt from a retail establishment. The inquiry was problematic from the outset, with the appellant informing the military judge that there had been no prior discussion of the larceny and, inter alia, upon his realization that the larceny was contemplated by his companion, his actions were apparently laughter, smirking, or other gestures to his non-English-speaking companion, along with the appellant doing nothing to stop the larceny. The ensuing dialogue appropriately gave the military judge pause.

MJ: So you allowed it to happen?
ACC: Yes, sir. That’s what I’m saying, I allowed it to happen.
MJ: So I don’t understand. Where is your criminal intent to steal the belt then?
ACC: Because once she — once she said that she was going to do it, I had no objections and I just basically went along with it as if I had no problems with it....

Record at 69.

The military judge then converses with the appellant and counsel at some length, in an effort to comport the plea, evidence received so far, and the law of principals, specifically aider and abettor theories. The discussion ultimately leads to some semblance of the appellant having given his companion “permission” or “approval” to commit the larceny, thereby making him a principal to the offense as an aider or abettor. The concept of “permission” or “approval” is enhanced by the following unfortunate application of judicial notice with agreement by the appellant:

MJ: Would you agree to something that’s very unique in this case is the fact that — I don’t mean to generalize here, but Japanese women seem to me to be very submissive and kind of take their cues from the male population. Would you agree with that or not?
ACC: I — would agree, sir.

Id. at 79.

The military judge erred in his application of the law of principals in this case. The appellant was no more and no less an aider or abettor based on the assumed socialization traits of his putative co-perpetrator. The providence inquiry establishes that the appellant never counseled his companion to commit this offense, did not share in the common criminal intent with her at the time of the offense, and did not function as a lookout. He exited the shop ahead of his companion, not knowing for certain that she would persist in her larceny. The appellant had no duty to stop the offense or otherwise report it to the shopkeeper. His presence at the scene and nebulous actions in this case are insufficient to impose criminal liability upon him for another’s offense. While the appel*637lant maintained during the providence inquiry that his laughter or other non-verbal intimations of approval constituted “permission” to steal the item, we and the law must differentiate between active encouragement, acquiescence or some flavor of knowing indifference. “The law of aider and abettor is not a dragnet theory of complicity.... Neither does later approval of the act supply a ground for conviction.” United States v. Jackson, 19 C.M.R. 319, 327, 1955 WL 3446 (C.M.A.1955) (citations omitted).

On the state of this record, I am left with a substantial basis in both law and fact for questioning this plea and therefore would set aside the larceny conviction. See Inabinette, 66 M.J. at 322. However, I otherwise concur in the majority opinion on the remaining findings. I also concur in affirming the sentence, upon reassessment, following my determination that the landscape would not change dramatically upon the setting aside a shoplifting-type offense involving $100.00. See United States v. Buber, 62 M.J. 476, 479 (C.A.A.F.2006) (citing United States v. Riley, 58 M.J. 305, 312 (C.A.A.F.2003)).