The Coast Guard Court issued a new published opinion today. United States v. Schiewe, __ M.J. ___, No. 1253 (C.G. Ct. Crim. App. 20 April 2007).
The court set aside a finding of guilty to a wrongful appropriation offense, finding that the providence inquiry did not establish Petty Officer Schiewe’s guilt. Schiewe “was convicted of wrongful appropriation of various items of military property from his unit, Coast Guard Cutter FIR, having a total value of about $2,419.” Schiewe, slip op. at 3. During the providence inquiry, Schiewe said he took the items home to refashion them into useful items for his ship. In his providence inquiry, Schiewe portrayed himself as something of a nautical Martha Stewart. And, oddly enough, just like Martha he was sentenced to five months in the slammer. (I swear I wrote the Martha Stewart analogy before I looked up the length of her sentence and discovered it was the same as Schiewe’s. Of course, to Martha Stewart, “Big Chicken Dinner” means a large, well-cooked fowl accompanied by acorn squash dressing — to Schiewe, it meant a punitive discharge.) But unlike Martha, Schiewe has prevailed on appeal.
The Coast Guard Court held that merely taking items from the ship without permission is not an Article 121 offense if the borrower believes that the property owner would have consented to the action. The Coast Guard Court held, “In this case, Appellant’s explanation that he believed he was entitled to remove the items from the ship based on his restricted work schedule and his previous history of working on Coast Guard projects at home was sufficient to raise the mistake of fact defense.” Id. at 6. The military judge failed to inquire into this potential defense, thus requiring that the finding of guilty to the wrongful appropriation charge be set aside.
Kudos to the Coast Guard Court for not applying Sales to affirm the sentence despite setting aside one of the three specifications of which he was convicted.