Please check me on this one. I must not be reading the law correctly because if I am, ACCA’s published opinion in Roach is not only obviously wrong, but is directly repudiated by a CMA case that the opinion actually cites. See United States v. Roach, __ M.J. ___, No. ARMY 20050018 (A. Ct. Crim. App. Nov. 30, 2007).
PVT Roach pled guilty to and was found guilty of stealing a night vision goggle and conspiring to steal a night vision goggle. Neither spec alleged that the NVG was military property, but all of the trial’s participants operated on the assumption that the military property sentencing aggravator applied. (The larceny spec alleged that PVT Roach stole a “Night Vision Goggle (AN PVS-14), of a value of about $3,138.00, the property of the United States Government.” As ACCA noted, “Neither specification included the specific words ‘military property’ when describing the NVG.” Id., slip op. at 3.)
The military judge nevertheless told PVT Roach that the military nature of the property was an element of the offense, defined “military property,” and elicited Roach’s agreement that the NVG was military property.
ACCA found that “the unique military nature of an NVG is readily apparent from its purpose and function.” Id., slip op. at 6. The court continued:
Equally significant, both the larceny and conspiracy specifications alleged that the property was stolen “at or near Fort Benning, Georgia” and was an “AN/PVS-14, [Night Vision Goggle]6 . . . property of the United States Government.” (emphasis added). Accordingly, the unique military nomenclature of the stolen NVG, location of theft, and identification of the item as belonging to the United States Government is sufficient on these facts to fairly characterize the property as military property.
The specifications provided sufficient notice that the object of the larceny and conspiracy was military property, protected appellant from double jeopardy, and appellant has alleged no specific prejudice due to the omission. Consequently, “under the circumstances of this case, the specification is sufficient to withstand challenge at this late stage of the proceedings.” Watkins, 21 M.J. at 210.
Id., slip op. at 7.
Here’s the weird part. ACCA includes this quotation in the first paragraph of its discussion: “There is no special repercussion at all flowing from whether the property was ‘property of the United States Government.’ United States v. Hemingway, 36 M.J. 349, 352 (C.M.A. 1993).” Roach, slip op. at 6. Let’s look at the two sentences that immediately follow that one in Hemingway, shall we?
Consequently, we agree with appellant that, in the absence of an allegation that the object of the conspiracy to steal was “military property,” the maximum confinement imposable for each of the two conspiracy specifications here was 5 years. See [Manual for Courts-Martial, United State (1984),] para. 46e(1)(d) (Change 3). This reduces the total maximum sentence to confinement that appellant faced to 30 years (5 years for each conspiracy and 10 years for each larceny of military property), not 40 years, as the military judge advised.
Hemingway, 36 M.J. at 352.
Am I misreading Judge Wiss’s opinion for a unanimous court, or does Hemingway address exactly the issue decided by Roach and reach exactly the opposite conclusion? If I’m not misreading it, how could ACCA have quoted Hemingway without discovering that the very next sentence compels the opposite conclusion from the one ACCA reached?
Now the Hemingway opinion might not ultimately help PVT Roach. It certainly didn’t help Specialist Hemingway. CMA concluded that Hemingway would have pled out with the same deal regardless of whether his maximum sentence was calculated at the military property or non-military property rate. But even if ACCA reached the right result in Roach, it seems to have done so by an impermissible means — by ignoring CMA’s holding that “in the absence of an allegation that the object of the conspiracy to steal was ‘military property,’ the maximum confinement imposable for each of the two conspiracy specifications here was 5 years.” 36 M.J. at 352.