United States v. Hunter

This opinion is subject to administrative correction before final disposition.

Before
MONAHAN, DEERWESTER, and McCOY
Appellate Military Judges

_________________________

UNITED STATES
Appellee

v.

Kenneth L. HUNTER
Corporal (E-4), U.S. Marine Corps
Appellant

No. 202100162

_________________________

Decided: 31 August 2022

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge:
Melanie J. Mann

Sentence adjudged 21 April 2021 by a special court-martial convened at
Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, consisting of a mili-
tary judge sitting alone. Sentence in the Entry of Judgment: reduction
to E-1, confinement for 12 months, and a bad-conduct discharge.

For Appellant:
Captain Kimberly D. Hinson, JAGC, USN

For Appellee:
LT Ebenezer K. Gyasi, JAGC, USN
LT R. Blake Royall, JAGC, USN
LT Gregory A. Rustico, JAGC, USN
 United States v. Hunter, NMCCA No. 202100162
Opinion of the Court

_________________________

This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).

_________________________

PER CURIAM:
Appellant was convicted, consistent with his pleas, of two specifications of
larceny of non-military property and one specification of accessing a govern-
ment computer to obtain protected information for an unauthorized purpose in
violation of Articles 121 and 123, Uniform Code of Military Justice [UCMJ], for
using his position as a Government Travel Card Agency Program Coordinator
[APC] for Third Battalion, Third Marine Regiment, Hawaii, to wrongfully take
money from Citibank that had been overpaid to travelers. 1
Appellant initially asserted a single assignment of error [AOE]: whether
the record of trial is incorrect because it includes two charge sheets, only one
of which was specifically addressed by Appellant’s court-martial. We subse-
quently specified the following issue: whether the military judge abused her
discretion by accepting Appellant’s guilty plea to larceny without clarifying
whether the Appellant formed the requisite mens rea during the time-period
alleged in the specifications, which formed the basis for Appellant’s second
AOE. We find merit in both Appellant’s assignment of error and the specified
issue and take action in our decretal paragraph.

I. BACKGROUND

Between July 2019 and October 2019, Appellant was deployed to Okinawa,
Japan, and performed duties as an APC for the Government Travel Charge
Cards [GTCC] program with Citibank. As an APC, Appellant had access
through a government computer to determine when Citibank provided fellow
Marines with overpayments to their respective GTCCs. Apprised of this infor-
mation, Appellant would then contact Citibank using the other Marines’ per-
sonal identifiable information [PII], also accessed through a government com-
puter, to gain access to the Marines’ accounts and instruct Citibank to refund
the overages to his personal accounts.
Appellant’s record of trial contains two charge sheets. The first, older,
charge sheet was the initial charge sheet and was referred on 1 April 2021. The

1 10 U.S.C. §§ 921, 923.

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Opinion of the Court

second charge sheet was referred on 19 April 2021 and was the one upon which
Appellant entered his guilty pleas in accordance with his plea agreement.

II. DISCUSSION

A. Record Correction
Whether a record of trial is accurate and complete is a question we review
de novo. 2 An appellant is entitled to have the official record accurately reflect
what happened in the proceedings. 3 Appellant submits that the inclusion of
the first charge sheet, referred on 1 April 2021, is an error and requests that
the court take corrective action. The Government agrees with Appellant that
“a charge sheet from a previous court-martial was incorrectly attached to the
[r]ecord of [t]rial, alleges no prejudice, and requests the Court order corrective
action.” 4 We concur that the inclusion of the earlier charge sheet was an error,
which did not affect Appellant’s substantive rights, because no prejudice was
alleged or is apparent. 5 However, to ensure that his record of trial is correct
and accurately reflects the proceedings, we take action in our decretal para-
graph.

B. Acceptance of Guilty Plea to Larceny Specifications

1. Standard of review and the law

We review questions of law arising from guilty pleas de novo. 6 Prior to ac-
cepting a guilty plea, the military judge must ensure the plea is supported by
an adequate factual basis. 7 The military judge must elicit sufficient facts to

2 United States v. Crumpley, 49 M.J. 538 (N-M. Ct. Crim. App. 1998).
3 Crumpley, 49 M.J. at 539.
4 Gov’t Brief at 2.
5 Crumpley, 49 M.J. at 539.
6 United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
7 United States v. Price, 76 M.J. 136, 138 (C.A.A.F. 2017).

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Opinion of the Court

satisfy every element of the offense in question, and the military judge’s deci-
sion to accept a plea of guilty is reviewed for an abuse of discretion. 8
A military judge abuses her discretion if a ruling is based on an erroneous
view of the law, 9 or if the military judge “fails to obtain from the accused an
adequate factual basis to support the plea” – however, the factual basis is an
area in which the military judge is afforded significant deference. 10 A review-
ing appellate court may only reject a guilty plea if there is a substantial basis
in law or fact to question the plea. 11
An accused may express his willingness to admit guilt to an offense, but
that alone is not sufficient to establish the providence of a plea of guilty as it
only reflects his subjective belief that his conduct as alleged was criminal. As-
suming that the language of the specification sufficiently states an offense, the
accused must also reveal factual circumstances that objectively establish his
guilt within the “four corners” of the specification. 12 A conviction cannot be
upheld even if an accused pleads guilty to a charge when there are not suffi-
cient facts to reasonably support the charge. 13
Article 121, UCMJ, larceny of non-military property, contains four ele-
ments: (1) that the accused wrongfully took, obtained, or withheld certain prop-
erty from the possession of the owner or of any other person; (2) that the prop-
erty belonged to a certain person; (3) that the property was of a certain value,
or some value; and (4) that the taking, obtaining, or withholding by the accused
was with the intent to permanently deprive or defraud another person of the
use and benefit of the property or permanently to appropriate the property for
the use of the accused or for any person other than the owner. 14

8 Inabinette, 66 M.J. at 321.
9 United States v. Simpson, 77 M.J. 279, 282 (C.A.A.F. 2018) (citation omitted).
10 Simpson, 77 M.J. at 282 (quoting United States v. Nance, 67 M.J. 362, 365
(C.A.A.F. 2009).
11 Inabinette, 66 M.J. at 322 (citing United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991)).
12 United States v. Chambers, 12 M.J. 443, 444 (C.M.A. 1992).
13 United State v. Norvell, 26 M.J. 477, 480 (C.M.A. 1998) (footnote omitted).
14 Article 121, UCMJ.

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Opinion of the Court

2. Appellant’s guilty pleas to larceny were not provident
The military judge instructed, consistent with the stipulation of fact be-
tween the parties, that to meet the fourth element of larceny, Appellant must
have had the intent to permanently deprive Citibank of the use and benefit of
its property for the use of Appellant or someone other than Citibank. Appellant
stated in the stipulation of fact that his obtaining of property from Citibank
was with the intent to permanently deprive Citibank of the use and benefit of
the property. However, during the plea colloquy with the military judge, Ap-
pellant made statements that called into question whether he intended to per-
manently deprive Citibank of its money. The military judged failed to clarify
whether Appellant intended to permanently deprive Citibank of property dur-
ing the time period alleged in the specifications. 15 This confusion during the
providence inquiry was compounded by the military judge repeatedly using the
term “wrongful appropriation” when she ostensibly meant “larceny” during her
inquiry with the Appellant as it related to Appellant’s guilt to Specifications 1
and 2 of Charge II. 16
We must resolve the question of whether the matters elicited during the
plea inquiry objectively furnished a factual predicate for Appellant’s plea to
larceny of non-government property. Recognizing that a military judge is enti-
tled to much deference when it comes to accepting guilty pleas, she must nev-
ertheless elicit facts from which she can determine the factual basis for the
guilty plea, and “mere conclusions of law recited by an accused are insufficient
to provide a factual basis for a guilty plea.” 17 We must determine whether Ap-
pellant’s guilty plea to larceny was provident. Even in a guilty plea, a matter
that calls into question the required mens rea requires further exploration by
the military judge. 18
Notwithstanding the stipulation of fact, the record indicates a substantial
conflict between the plea and Appellant’s statements during the providence

15 See United States v. Tobias, No. ARMY 20200169, 2021 CCA LEXIS 18, at *9 (A.
Ct. Crim. App. Jan. 19, 2021) (finding a substantial basis to question the appellant’s
guilty plea where a larceny specification alleged a timeframe encompassing the initial
taking, but did not capture the time period when the appellant formed the intent to
permanently deprive).
16 R. at 40, 49.
17 United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996) (citation omitted).
18 United States v. Thomas, 39 M.J. 1078, 1079 (C.G.C.M.R. 1994).

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Opinion of the Court

inquiry related to whether Appellant intended to permanently deprive Citi-
bank of its property during the time-period alleged in Specifications 1 and 2 of
Charge II. The military judge failed to elicit whether, during the time-period
alleged in Specifications 1 and 2 of Charge II, the Appellant intended to per-
manently deprive Citibank of its property, which is an essential element of a
larceny specification. 19
During her inquiry into Specification 1 of Charge II the military judge en-
gaged in the following colloquy with Appellant:
MJ: And so you intended to wrongfully appropriate this property?
ACC: Yes, ma’am.
…
MJ: Did you intend to return it?
ACC: Down the line I did. I know I wasn’t – I already know what I was
facing at that point. I couldn’t do anything at that point, after all the
money was gone.
MJ: So you intended to deprive Citibank of the use and benefit of the
property in this case, the money?
ACC: Yes, ma’am.
MJ: Once again, do you agree then that taken together your actions
satisfy the elements and definitions of the offenses as I’ve stated them
for you earlier and you are, in fact, guilty of wrongful appropriation by
obtaining? 20
During her inquiry into specification 2 of charge II, the military judge inquired
as follows:
MJ: So you intended to wrongfully appropriate this property?
ACC: Yes, ma’am.
MJ: And do you agree that you – let me just ask you. Did you intend
to return the money?
ACC: Yes, ma’am.
MJ: You did return – you did intend on returning it.

19 United States v. Bilbo, 9 M.J. 800, 802 (N.M. C.M.R. 1980) (holding appellant
must have had the specific intent, at the time and places alleged, to permanently de-
prive creditors of the use and benefit of their funds to affirm a conviction for larceny).
20 R. at 40.

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Opinion of the Court

ACC: Yes, ma’am, but never did anyway. Once I realized I was already
in some sort of trouble – there was no time to even do it or no strategy
way to even send money back to who they belonged to.
MJ: So at some point, you just intended that you were not going to
return it?
ACC: Yes, ma’am.
MJ: So you agree and admit that you deprived Citibank of the use and
benefit of the property, in this case, the money?
ACC: Yes, ma’am.
MJ: And once again, you agree that, taken together, your actions satisfy
the elements and definitions of this offense as I have stated them for
you earlier, and that you are in fact guilty of the offense of wrongful
appropriation, that is obtaining by false pretense for both Specifications
1 and 2? 21
Appellant set up a possible defense to larceny when he provided responses
related to his intent to permanently deprive Citibank of its money during the
time and places alleged in the specifications that were inconsistent with his
pleas. Moreover, the military judge did not effectively address this conflict dur-
ing the providence inquiry. In other words, Appellant stated a possible defense
during the colloquy with the military judge that was inconsistent with his
plea. 22 The intent to repay or replace stolen property is only a defense to lar-
ceny if there exists a substantial ability to actually do so. 23
Put differently, if a substantial ability to replace stolen property exists,
then an accused who “takes money …with the intent to return an equivalent
amount of money” has not committed the offense of larceny, but may have com-
mitted the offense of wrongful appropriation. 24 The record lacks inquiry into
whether Appellant had a substantial ability to restore the money to Citibank.
He admitted to wrongfully obtaining money of some value, (Specification 1,
Charge II) and some amount less than $1,000 (Specification 2, Charge II) that
was the property of Citibank. While it is clear from the record that when asked

21 R. at 49.
22 See United States v. Bullman, 56 M.J. 377, 381 (C.A.A.F. 2002).
23 United States v. Boddie, 49 M.J. 310 (C.A.A.F. 1998).
24 Manual for Courts-Martial, United States [MCM], Part IV, P 64(c)(1)(f)(iii)(B)
(2019 ed.)

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Opinion of the Court

about what happened to the money he wrongfully obtained from Citibank, Ap-
pellant advised that he “went splurging with it all” and “all of the money was
gone.” However, that inquiry was made related to what happened to the money
Appellant wrongfully obtained, not whether he had a substantial ability to re-
pay the amounts wrongfully obtained. At the time of his guilty plea, Appellant
was employed full time as an active-duty Corporal in the United States Marine
Corps and was receiving a salary. As there was no inquiry whether Appellant
was unable to restore Citibank during the timeframe alleged in the specifica-
tions, there was no finding as such by the military judge. Therefore, the mili-
tary judge accepted Appellant’s guilty pleas without resolving a potentially
valid legal defense to larceny, the intent to repay, that presented itself based
on Appellant’s responses during the providence inquiry.
Accordingly, the findings of guilty to larceny with regard to Specifications
1 and 2 of Charge II must be set aside and dismissed. However, from the record
we are convinced that Appellant was provident to the lesser included offense
of wrongful appropriation with regard to Specifications 1 and 2 of Charge II
because he formed the specific intent to, and did, temporarily deprive Citibank
of the use and benefit of its property. 25 “Any reviewing authority with the
power to approve or affirm a finding of guilty may approve or affirm, instead,
so much of the finding as includes a lesser included offense.” 26 As it relates to
Specifications 1 and 2 of Charge II we, therefore, find Appellant’s plea provi-
dent only to the lesser included offense of wrongful appropriation of non-mili-
tary property.

C. Sentence Reassessment
One of the significant changes under the Military Justice Act of 2016 [MJA
2016] was to implement “segmented” sentencing. Under MJA 2016, the mili-
tary judge adjudges segmented sentences for confinement and fines, and in the
case of confinement for more than one offense, determines whether the periods
of confinement run concurrently or consecutively. 27
Having set aside and dismissed Appellant’s conviction for the greater of-
fense charged in Specifications 1 and 2 of Charge II and affirming only the
lesser included offense of wrongful appropriation of non-military property, we
must determine whether we can reassess the sentence or must remand to the
trial court. We do so by analyzing (1) whether there have been dramatic

25 MCM, pt. IV, para. 64(a)(2).
26 Article 59(b), UCMJ.
27 See Rule for Courts-Martial 1002(d)(2).

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Opinion of the Court

changes in the penalty landscape or exposure; (2) whether sentencing was by
members or military judge alone; (3) whether the nature of the remaining of-
fenses captures the gravamen of the criminal conduct within the original of-
fenses, and whether or not significant or aggravating circumstances addressed
at the court-martial remain admissible and relevant to the remaining offenses;
and (4) whether the remaining offenses are of the type with which appellate
judges should have experience and familiarity to determine what sentence
would have been imposed at trial. 28
Appellant remains convicted of two specifications of wrongful appropriation
of non-military property and one specification of accessing a government com-
puter to obtain protected information for an unauthorized purpose. 29 His over-
all exposure remains the jurisdictional maximum that may be awarded at a
special court-martial. The military judge conducted the sentencing, and the
remaining offenses and the record capture the gravamen of Appellant’s crimi-
nal misconduct in accessing the personally identifiable information of fellow
Marines in order to wrongfully appropriate property of Citibank. Finally, the
offenses that remain are offenses that we have sufficient experience and famil-
iarity with to reliably determine what sentence would have been imposed at
trial. Accordingly, we conclude that we can reassess the sentence.
The record is clear that while deployed, and on divers occasions, Appellant
unlawfully accessed personally identifiable information of fellow Marines to
unlawfully obtain property belonging to Citibank. Appellant was sentenced by
a military judge. The terms of the plea agreement dictated the unitary portion
of the sentence, requiring the military judge to adjudge a bad-conduct dis-
charge and reduction to E-1, with which the military judge complied. Review-
ing this sentence with the “individualized consideration” of the particular ac-
cused based on the “nature and seriousness of the offense and the character of
the offender,” we find a unitary punishment consisting of reduction to E-1, and
a bad conduct discharge to be appropriate. 30
MJA 2016’s segmented sentencing construct requires reassessment of con-
finement. Three months is the maximum period of confinement authorized for
a violation of wrongful appropriation. 31 Based on the entirety of the record, we
hold that a sentence of three months confinement for Specification 1 of Charge

28 United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013).
29 Articles 121, 123, UCMJ.
30 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (internal quotation
omitted).
31 MCM, pt. IV, para. 64(d)(2)(a).

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Opinion of the Court

II, three months confinement for Specification 2 of Charge II, and twelve
months of confinement for the sole specification of Charge IV is a just and ap-
propriate segmented sentence. We also hold that it is also appropriate for all
sentences of confinement to run concurrently.

III. CONCLUSION

The record of trial does not accurately reflect the disposition of Appellant’s
court-martial. Although we find no prejudice, Appellant is entitled to have
court-martial records that correctly reflect the content of his proceeding. 32 In
accordance with R.C.M. 1111(c)(2), we modify the record of trial and ORDER
that the erroneously included charge sheet, referred on April 1, 2021, be re-
moved from the record. 33
Considering all of the foregoing, and after careful consideration of the rec-
ord, only so much of the findings of guilty to Specifications 1 and 2 of Charge
II as finds Appellant guilty of the lesser included offense of wrongful appropri-
ation of non-military property are AFFIRMED. The greater offense of larceny
charged in both Specifications 1 and 2 of Charge II are DISMISSED. The
remaining finding of guilty to the sole specification of Charge IV is AF-
FIRMED. As the Entry of Judgment does not accurately reflect the disposi-
tion of the charges, in accordance with Rule for Courts-Martial 1111(c)(2), we
modify the Entry of Judgment and direct that it be included in the record. 34

FOR THE COURT:

S. TAYLOR JOHNSTON
Interim Clerk of Court

32 Crumpley, 49 M.J. at 539.
33 To promote judicial economy the Court notes that an uncontested scrivener’s
error or error in the compilation of a record may in the future be more quickly resolved
through a motion to correct the record, pursuant to Rule 6(c) of the United States Navy-
Marine Corps Court of Criminal Appeals Rules of Appellate Procedure.
34 Articles 59 & 66, UCMJ.

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UNITED STATES NMCCA NO. 202100162

v. ENTRY
OF
Kenneth L. HUNTER JUDGMENT
Corporal (E-4)
U.S. Marine Corps As Modified on Appeal
Accused
31 August 2022

On 21 April 2021, the Accused was tried at Marine Corps Base Hawaii, Kaneohe
Bay, Hawaii, by a special court-martial, consisting of a military judge sitting alone.
Military Judge Melanie J. Mann, presided.

FINDINGS

The following are the Accused’s pleas and the Court’s findings to all offenses the
convening authority referred to trial:

Charge I: Violation of Article 80, Uniform Code of Military Justice,
10 U.S.C. § 880.
Plea: Not Guilty
Finding: Dismissed

Specification: Attempts – other than murder and voluntary
manslaughter between on or about 30 July 2019 and on
or about 4 August 2019.
Plea: Not Guilty
Finding: Dismissed

Charge II: Violation of Article 121, Uniform Code of Military Justice,
10 U.S.C. § 921.
Plea: Guilty
Finding: Guilty
 United States v. Hunter, NMCCA No. 202100162
Modified Entry of Judgment

Specification 1: Larceny of non-military property of a value of $1,000
or less between on or about 24 July 2019 and on or
about 17 October 2019.
Plea: Guilty
Finding: Not Guilty, but Guilty of the lesser included offense
of wrongful appropriation [The greater offense of larceny was
dismissed by the United States Navy-Marine Corps Court of
Criminal Appeals.]

Specification 2: Larceny of non-military property of a value of $1,000
or less between on or about 24 July 2019 and on or
about 17 October 2019.
Plea: Guilty
Finding: Not Guilty, but Guilty of the lesser included offense
of wrongful appropriation [The greater offense of larceny was
dismissed by the United States Navy-Marine Corps Court of
Criminal Appeals.]

Charge III: Violation of Article 121a, Uniform Code of Military Justice,
10 U.S.C. § 921a.
Plea: Not Guilty
Finding: Dismissed

Specification: Knowingly using a credit or debit card without
authorization to obtain property of a value of $1,000 or
less on or about 26 July 2019.
Plea: Not Guilty
Finding: Dismissed

Charge IV: Violation of Article 123, Uniform Code of Military Justice,
10 U.S.C. § 923.
Plea: Guilty
Finding: Guilty

Specification: Accessing a government computer to obtain protected
information for an unauthorized purpose between on
or about 24 July 2019 and on or about 17 October 2019.
Plea: Guilty
Finding: Guilty

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 United States v. Hunter, NMCCA No. 202100162
Modified Entry of Judgment

Charge V: Violation of Article 134, Uniform Code of Military Justice,
10 U.S.C. § 934.
Plea: Not Guilty
Finding: Dismissed

Specification 1: Violation of federal law, Wire Fraud between on or
about 24 July 2019 and on or about 17 October 209.
Plea: Not Guilty
Finding: Dismissed

Specification 2: Violation of federal law, Wire Fraud between on or
about 24 July 2019 and 17 October 2019.
Plea: Not Guilty
Finding: Dismissed

SENTENCE

On 21 April 2021, a military judge sentenced the Accused to the following (as mod-
ified, if at all, during any post-trial action):
Reduction to pay grade E-1.
For Specification 1 of Charge II:
confinement for 3 months.
For Specification 2 of Charge II:
confinement for 3 months.
For the Specification of Charge IV:
confinement for 12 months.
The terms of confinement will run concurrently.
Confinement for a total of 12 months.
A bad-conduct discharge.

FOR THE COURT:

S. TAYLOR JOHNSTON
Interim Clerk of Court

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