CAAF decided the certified Army case of United States v. Hines, No. 13-5010/AR, 73 M.J. 119 (CAAFlog case page) (link to slip op.), on Monday, February 24, 2014. The court reverses the decision of the Army CCA that found that the fraudulent receipt of a housing allowance constitutes a separate larceny for each month, and affirms Appellee’s guilty plea and the sentence.
Judge Ryan writes for a unanimous court.
Appellee was a Sergeant stationed at Fort Bragg, NC, in October, 2008, when he began to steal housing and family separation allowances failing to inform the military of his divorce and subsequently asserting on numerous forms that he was still married. Over the following three years and multiple assignments Appellee received various undeserved allowances, including the Basic Allowance for Housing (BAH) at the higher “with dependents” rate, and the Family Separation Allowance (FSA).
The Government discovered Appellee’s fraud and aggregated the improperly-received monthly allowances to charge him with two specifications of larceny and one specification of wrongful appropriation of military property, all of a value of more than $500. Appellee then pleaded guilty, at a general court-martial composed of a military judge alone, to two specifications of false official statement, two specifications of larceny of military property of a value more than $500, and one specification of wrongful appropriation of military property of a value more than $500, in violation of Articles 107 and 121, UCMJ. He was sentenced to confinement for three months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved the forfeitures but otherwise approved the sentence.
On review, the Army CCA rejected the Government’s aggregate theory of the case, finding that Appellee “never satisfactorily admitted to a single larceny in an amount over $500.00 and only providently admitted to a series of separate larcenies each in an amount less than $500.00 and each, at a month apart, at substantially different times.” This part of the CCA’s decision created a split with the Navy-Marine Corps CCA that specifically adopted the aggregated, “continuing larceny” theory in United States v. Lepresti, 52 M.J. 644, 653 (N.M. Ct. Crim. App. 1999). The court also found that Appellee’s plea did not satisfactorily resolve the question of whether he was entitled to the housing allowance at the lower individual (without-dependents) rate. The CCA modified the findings but affirmed the sentence as approved by the convening authority.
The Army JAG then certified two issues to CAAF:
I. Whether the Army Court of Criminal Appeals erred when it held that Appellee’s pleas to Specifications 1, 2, and 3 of Charge II were improvident because theft of basic allowance for housing and family separation allowance occurring over multiple months “amounts to a separate larceny each month the money is received.”
II. Whether the Army Court of Criminal Appeals erred when it held that Appellee’s pleas to Specifications 1 and 3 of Charge II were improvident because the military judge “never satisfactorily resolved the inconsistency between [Appellee’s] pleas to the entire amount [of basic allowance for housing] in light of his apparent entitlement to a lesser amount.”
Judge Ryan answers both questions in the affirmative, expressly adopting the reasoning of the 5th Circuit Court of Appeals in United States v. Billingslea, 603 F.2d 515, 520 (5th Cir. 1979), and concluding that any questions of Appellee’s lack of entitlement to the lower individual rate were resolved during the plea inquiry.
Judge Ryan begins her discussion by finding that the question of whether there is one crime or multiple crimes in the wrongful receipt of the allowances on a recurring basis but at different times and places each month “turns on the specific factual circumstances of each case. And that inquiry focuses on the actor ‘at or near the starting point of the illegal activity.'” Slip op. at 10 (quoting Billingslea, 603 F.2d at 520). In Billingslea, the appellant was a federally-employed summer arts program manager who was also working at a local college during the same time periods he claimed on his federal timesheets. He was paid just $300 every two weeks, but was charged with stealing more than $100 based on aggregation of multiple days’ pay. He was also stealing from students who were paid (also by the federal government) to attend the classes, and prosecutors aggregated seven different stolen student paychecks – each worth less than $100 individually – to make a second charge. As charged, as larceny of $100 or less was a misdemeanor, and one of more than $100 was a felony, and the appellant was convicted of the felony offenses at a contested jury trial.
Reviewing the case, the Fifth Circuit explained that, “The law of this Circuit is that separate takings punishable individually as misdemeanors cannot be aggregated to make up one felonious taking.” Billingslea, 603 F.2d at 518 (link to slip op.). But it concluded:
After carefully considering the authorities urged upon us as well as those discovered through our own efforts, we now elaborate on the approach we feel is most appropriate in cases of this type. Generally, the question whether a series of takings constitutes one or more than one offense under 18 U.S.C.A. § 665 must turn on the factual circumstances of each case. While factors such as the temporal and geographical proximity of the several takings may be germane, the focus of the inquiry should be at or near the starting point of the illegal activity. Of critical importance is the state of mind or intent of the actor prior to and simultaneously with the first taking. Closely related, and of equal importance, is evidence of acts done by the accused, either in preparation for the several takings or as integral part of the first taking, which facilitate the subsequent takings or in some way aid the defendant in accomplishing them. Under this approach, therefore, the formulation of a plan or scheme or the setting up of a mechanism which, when put into operation, will result in the taking or diversion of sums of money on a recurring basis, will produce but one crime. Conversely, if all that can be attributed to the accused is an original intent to purloin and the evidence merely shows that this intent was acted on from time to time, the nature of the acts must be measured by the separate takings. We now turn to the separate counts under consideration.
Billingslea, 603 F.2d at 520 (emphasis added). CAAF “expressly adopt[s] th[is] reasoning and holding.” Hines, slip op. at 4. In a footnote, Judge Ryan explains that this framework “is better adapted to the particular circumstances of each case than the more narrow three-part test developed by the United States Navy-Marine Corps Court of Criminal Appeals in United States v. Lepresti, 52 M.J. 644, 653 (N-M. Ct. Crim. App. 1999).” Slip op. at 11 N.4.
Applying this to the facts of Hines, Judge Ryan finds that “there were three distinct mechanisms by which money was wrongfully received at three different locations,” and that aggregation of the total amounts received into three separate specifications “was appropriate.” Slip op. at 12. She also addresses whether the plea inquiry adequately resolved Appellee’s entitlement to a housing allowance at the lower, individual rate. While a footnote explains that “in a sense this is irrelevant” because aggregation of even just the difference between the two rates of the allowance would support the charge, slip op. at 14 N.5, Judge Ryan concludes that:
While the discussion of theoretical entitlement to BAH-WITHOUT contained in paragraph nine of the stipulation of fact raised more questions than it answered, the same stipulation of fact made very clear that the condition precedent for being entitled to any BAH — seeking and receiving a [certificate of non-availability] — had not been fulfilled.
Slip op. at 14.
In my argument preview, I wondered if CAAF would decide this case narrowly or broadly. By adopting the “Billingslea framework,” CAAF takes the broad approach, and the court avoids getting bogged down by the complexities of the housing allowance regulations.
• ACCA’s opinion
• Appellant’s (Government) brief
• Appellee’s brief
• Appellant’s (Government) reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis