United States v. Miles

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

The issue before us is whether the accused improvidently entered a plea of guilty to some of the charges on which he was brought to trial.

On May 20, 1959, the accused appeared before a general court-martial convened at Fort Dix, New Jersey. He was represented by appointed defense counsel and two civilian lawyers who were members of the bar of the State of New Jersey. In due course, he was arraigned on the following charges: Charge I and its specification, which alleged reckless operation of an automobile, in violation of Article 111 of the Uniform Code of Military Justice, 10 USC §911; Charge II and its specification, which alleged leaving the scene of a collision with three other ears, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934; Additional Charge and three specifications, which alleged housebreaking, in violation at Article 130, Uniform Code of Military Justice, 10 USC § 930; and Additional Charge I, with three specifications, two of which alleged wrongful appropriation of Government property, and one of which charged the larceny of Government blankets of a value of $132.48. The accused entered a plea of guilty to all charges. The meaning and effect of the plea was explained to him by the law officer, both in court and during an out-of-court hearing. In the out-of-court hearing, one of the civilian counsel questioned the accused and established that the accused had conferred with civilian counsel for “hours” and that counsel had “reviewed at rather great length” a statement by the accused regarding the offenses and “the evidence in this case.” Counsel had also conferred with the accused’s father. It was further established that counsel explained the case in “lengthy detail” to the accused, and the accused was “completely satisfied” with counsel’s evaluation of the case. The accused indicated he understood fully the meaning and effect of his plea; that he could withdraw the plea anytime before sentence; and that he knew what he was doing, and his plea was voluntary.

When court reconvened the accused’s plea of guilty was formally accepted, and a stipulation of facts regarding the additional charges was received in evidence. Findings of guilty of all charges and specifications were duly returned by the court-martial. During the sentence procedure, civilian counsel presented letters attesting to the accused’s good character from persons who knew the accused in his own community. Also presented was evidence which tended to show that, with the exception of twelve white hospital blankets, which were disposed of by the accused, partly by sale and partly by apparent gifts to other soldiers, all of the property taken by the accused in his housebreakings was brought by the accused to his company supply room to make up inventory shortages which worried the company commander. It may further be inferred from the evidence that the accused had been told by the company commander to try to make up the shortage of specified items by “normal scrounging” activities. In the final argument on the sentence, one of the accused’s civilian counsel reviewed the evidence and maintained that statements made by the company commander and other personnel of the company “pushed [the accused] in the wrong direction.” However, he concluded his argument as follows:

“This brings me to my closing remark — the punishment. I said before I did not come down here to say Miles was innocent, nor does Miles want me to say that. He has admitted to being guilty and he should be punished for being guilty, but how should he be punished under the circumstances which have been developed at great length and great detail today?”

The court sentenced the accused to a dishonorable discharge, total forfeitures, reduction to lowest enlisted grade, and confinement at hard labor for one year. The convening authority, approved the findings of guilty and the sentence, except that in accordance with a pretrial agreement he changed the dishonorable discharge to a bad-conduct discharge. On further review, a board of review concluded that the “peculiar circumstances” of the case justified additional reduction of the sentence. Accordingly, it disapproved the bad-eon-duct discharge and reduced the confinement to six months and the forfeiture to $43.00 per month for six months. The Acting The Judge Advocate General then remitted the unexecuted portion of the confinement. Thereafter, appellate defense counsel moved the board of review for reconsideration of its decision on the ground that the accused’s plea of guilty to the additional charges was improvident. Counsel contended the evidence shows that the accused acted under orders from his superiors, including his company commander. The motion was denied. The accused appealed to this Court and we granted review to consider the question, of the improvidence of the plea, insofar as it relates to the additional charges.

The accused did not testify at the trial; neither has he provided a post-trial statement of his understanding of the role he was to play in making up the supply shortages. The record of trial does not show that the order to the accused to “scrounge” contemplated breaking and entering, although it does appear that after the accused turned up with a large quantity of material it was suspected he may have obtained it illegally. Witnesses testified that “scrounging” entailed the exchange of surplus items for shortage items, or the voluntary transfer by one unit of a surplus item to another unit which had a shortage in that item, on a sort of “good will’ basis or as a “gift.” Such transfers were considered by the witnesses to be permissible supply practices, but they were sharply distinguished from illegal appropriations. Be that as it may, the plea of guilty admitted, and the accused does not now deny, that he knew he was engaged in illegal conduct when he broke into other buildings to obtain property, without regard to whether the property he took was or was not surplus to the units from which it was taken. If the accused acted in accordance with the terms of an order from his company commander which he knew to be illegal, he is nonetheless guilty of the oifenses charged. Cf. United States v Thornton, 8 USCMA 446, 24 CMR 256; see also United States v Schreiber, 5 USCMA 602, 18 CMR 226. In any event, the act committed by the accused was not a mere transfer of property from one unit to another. By taking the property from one custodian and transferring it to another, the accused effectively deprived the former of his right to possession and subjected him to either criminal or civil liability therefor. The fact that ownership was laid in the Government in the specifications instead of in the unit from which the property was taken did not constitute a fatal variance. . United States v Craig, 8 USCMA 218, 24 CMR 28. If a teller in a bank finds a shortage in his day’s account, certainly he commits larceny if he secretly takes from another teller an amount sufficient to clear his own accounts. That is the situation in this case. In this connection, what we said recently in United States v Clay, 11 USCMA 422, 29 CMR 238, is equally applicable here. “[W]e know why the accused committed the offenses charged, but the reason does not detract one iota from the criminal character of the acts.”

Appellate defense counsel contend the accused cannot be guilty of the additional charges because he merely effected the transfer of property from one Army unit to another. The argument is manifestly inapplicable to the hospital blankets which were sold and given away by the accused. The fact that these were ultimately recovered by law enforcement agents mitigates, but does not eliminate, the criminal character of the act. As far as the property taken over by the accused’s unit is concerned, the argument disregards the-fact that, by his plea, the accused admitted, and has never since denied, he-committed the unauthorized house-breakings, and that at the times thereof he intended to appropriate the property for his own purposes. There is no evidence in the record of trial or in the appellate papers before us which in any way suggests that the plea of guilty was improvident. United States v Wilson, 9 USCMA 60, 25 CMR 322.

The record of trial indicates that as far as the additional charges are concerned, except that pertaining to the-hospital blankets, the accused was entitled to clemency and that his superiors, if they encouraged him in his misdeeds, deserved severe condemnation. The duty of a military superior* is to prevent not to encourage crime. The board of review recognized and1 fully responded to the situation. It specifically reassessed the sentenced' “solely upon the basis” of the charges of reckless driving and improperly leaving the scene of an accident. And, in-view of its conclusion, that with a-, “little guidance” the accused would make a “good soldier,” it disapproved the bad-conduct discharge, and reduced the period of confinement. It thereby accorded the accused a full measure of compassion and justice.

The decision of the board of review is affirmed.

1 Were the reductions in sentence accomplished by well-meaning appellate authorities material in any respect to our disposition of this case, they would fade into insignificance in view of the indication in the board of review’s oprn-ion that accused’s commanding officer has not been subjected to disciplinary action,