CAAF will hear oral argument in the Army case of United States v. Wilson, No. 16-0267/AR (CAAFlog case page), on Wednesday, October 26, 2016, after the oral argument in Gomez. The case involves one issue that was raised personally by the appellant and questions whether an outdoor fenced area meets the definition of a building or structure for purposes of the offense of housebreaking in violation of Article 130, UCMJ, 10 U.S.C. § 930:

Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor pool.

Specialist (E-4) Wilson and an accomplice entered the 3rd Brigade Special Troops Battalion motor pool at Fort Benning, Georgia, intending to steal batteries. They were caught. Wilson pleaded guilty to larceny in violation of Article 121 (for prior thefts) but he contested a charge of housebreaking of the motor pool in violation of Article 130. The offense of housebreaking requires entry into a building or structure:

Any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking and shall be punished as a court-martial may direct.

Article 130. The motor pool at issue, however, is an outdoor area surrounded by a fence. There is a building inside the fence that is part of the motor pool, but Wilson didn’t enter it. Rather,

Appellant and [his accomplice] did not enter a building to get to the batteries, but they did have to jump over a fence. The batteries were inside the motor pool stacked on a pallet.The pallet was outside of a bay or a building that was also inside of the motor pool.

Gov’t Br. at 4 (citations to record omitted). Considering these facts at trial, the military judge concluded that housebreaking in violation of Article 130 “can apply to fenced enclosures such as a motor pool or storage yard.” App. Br. at 5. The military judge then denied Wilson’s R.C.M. 917 motion for a finding of not guilty on the basis that there was evidence that Wilson “did jump the fence, or did enter the structure, of the 3rd BSTB motor pool.” App. Br. at 5 (qouting record).

The Army CCA summarily rejected the assigned error. CAAF then granted review.

The briefs from both Wilson and the Government acknowledge that CAAF has given some consideration to the scope of the offense of housebreaking. The caselaw, however, is primarily focused on the enumerated Article 134 offense unlawful entry, which is basically simple trespass plus a terminal element. Unlawful entry in violation of Article 134 was traditionally considered to be a lesser included offense of housebreaking in violation of Article 130 (housebreaking involves the added element of intent to commit a criminal offense within). But CAAF separated Article 134 offenses (that require proof of prejudice to good order and discipline or service discrediting conduct) from other offenses (that don’t require that additional proof) with its opinions in United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) (discussed here) (finding that in Article 134, clause 1 & 2 are not LIOs of clause 3),United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (discussed here) (finding that a simple neglect under Article 134 is not a LIO of every enumerated article), and United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (discussed here) (returning to the elements test for determining LIOs).

So it’s possible that CAAF will not consider itself to be tightly bound by its prior precedents involving unlawful entry as a lesser included offense of housebreaking.

Wilson’s brief seeks a relatively narrow interpretation of Article 130 that would limit the offense to a building or structure that “is enclosed by walls, covered by a roof, and primarily used for habitation or storage.” App. Br. at 13. In support of this interpretation the brief asserts that:

Applying Article 130 to an outdoor fenced area where some property is kept goes beyond Congress’ intent to criminalize the entry into a building or structure. The issue then becomes the type of enclosure or fence which is sufficient to support a housebreaking charge. Expanding this definition will require courts to engage in needless fact-finding to weigh factors such as the height, material, and ease of access of the fence in question.

App. Br. at 12.

The Government’s brief focuses on the precedent, even though it primarily addresses the different offense of unlawful entry in violation of Article 134. The Government also emphasizes that:

The definition of “structure” in the MCM was never meant, as appellant asserts, to be limited to property with walls and a roof. (Appellant’s Br. 10); MCM, pt. IV, 156.c.(4). This court has never interpreted the term “structure” so simplistically.

Gov’t Br. at 12. CAAF, however, may well provide such a simple interpretation as a resolution to this case.

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

19 Responses to “Argument Preview: What constitutes housebreaking in United States v. Wilson, No. 16-0267/AR”

  1. stewie says:

    So what if a structure has four walls and a roof, then a hurricane comes, and the roof if blown off, but the walls remain, and I steal something from inside? Housebreaking or no?

  2. Philip Cave says:

    Interesting question should it come up in the future.
    Wilson stole from outside the building.  The “hurricaner” stole maybe from within a house/building–a different question presented.  (The location of the property stolen and how the stealing was done are interesting and relevant factors to consider on sentencing, as perhaps aggravation–as a Winckelmann/Sales analysis will later show therefore the sentence remains the same)
    But it’s the facts of Wilson the court has to interpret.  The issue is whether a getting over or through a fence is a housebreaking–note the use of the word “house” in the title of the offense.  Wilson did not get over the fence and then into the building, or the hurricaned house or building.  While not dispositive, I would refer to the “Title and Headings Canon: the title and headings are permissible indicators of meaning.”  Scalia & Garner, Reading the Law, at 221.  But then a lot of definitions have changed since my police training which taught that housebreaking was a daytime offense and the nighttime offense was burglary.

  3. Concerned Defender says:

    Didn’t read the case or opinions, just want to comment on my opinion of housebreaking and fenced areas.  A fence is a structure.  It’s built to keep people out (or things inside).  It’s a boundary, the same as a wall.  It’s physical “notice” if you will that outsiders are not welcome inside the fence/wall without permission, and not to take things from inside the fence.  A structure doesn’t require a roof does it?  I’d say no.  For a house or fence a trespasser or B&E must physically overcome some barrier e.g. a wall – through a door, portal, window, or going over or under.  A barn, a house, a fenced area… these don’t occur in nature and are all structures in my opinion.  

  4. Zachary D Spilman says:

    How about a shrubbery, Concerned Defender


  5. stewie says:

    Phil, I don’t think my question can be shrugged off so easily when the central argument of the defense in this case is to limit housebreaking to “four walls and a roof.”  If a roof is absolutely required, then, in my hypo, it’s not a housebreaking because there is no roof.  A result that would be perhaps technically correct but wouldn’t pass the common sense test.  Then again, technically correct is often the best kind of correct.
    If a roof is absolutely not required, then my “hurricaner” is still guilty of housebreaking.  That doesn’t necessarily mean the “motor pooler” is as well, but it does suggest that the type of structure required doesn’t necessarily require a traditional building.
    We balk because it’s a fence perhaps? What if it were surrounded on all four sides by a solid wall, but was otherwise without a roof? Is wall = housebreaking and fence not = housebreaking?  Or is the lack of a roof?  What if it had a roof, but no walls?
    I’m just suggesting that the answer here is going to be one of two things:
    1. A highly limited definition (it’s 4 walls and a roof or bust)
    2. A more broad, “common sense” definition (which may or may not include a motor pool as described here)

  6. Philip Cave says:

    Stewie, I’m quite happy to cede your hurricane damaged residence can be housebroken.

  7. k fischer says:

    I wonder why neither side cited US v. Cahill?

    The Court of Military Appeals in discussing the offense of housebreaking has indicated that it is designed to protect real property and the type of personal property which amounts to a structure used for habitation or storage. See United States v. Gillin, 25 C.M.R. 173 (C.M.A.1958); United States v. Breen, 36 C.M.R. 156 (C.M.A.1966); United States v. Taylor, 30 C.M.R. 44 (C.M.A.1960), and United States v. Hall, 30 C.M.R. 374 (C.M.A.1961).

    Our research reveals that the definition of “structure” is not a uniform one,2 but in its broadest sense the word means anything constructed or built and generally refers to any product or piece of work artificially built up or composed of parts and joined together in some definite manner. See People v. Moyer, 635 P.2d 553, 555 (Colo.1981); see also Watson Industries, Inc. v. Shaw, 235 N.C. 203, 69 S.E.2d 505, 509 (1952). Thus, inclosed trailers are structures; the question is whether they are of the sort used for habitation or storage.

    U.S. v. Cahill, 23 M.J. 544, 546 (A.C.M.R. 1986)

    So,  under Cahill, there might not be a requirement for a roof.  But, since it has to be artificial and built up, I think shrubbery would not qualify, Zack.  Good to see those TC’s stick to their guns and spend so much time on such an important issue.  I think it made a huge difference in the sentence. 

  8. Philip Cave says:

    I think it made a huge difference in the sentence. 

    Echo Fischer, assuming he was being ironic. Should Wilson win, the Winckelmann/Sales analysis will lead to an affirmation of the sentence as adjudged.

  9. stewie says:

    “Our research reveals that the definition of “structure” is not a uniform one,2 but in its broadest sense the word means anything constructed or built and generally refers to any product or piece of work artificially built up or composed of parts and joined together in some definite manner.”
    A fenced in area would seem to satisfy this definition.

  10. Zachary D Spilman says:

    What about a moat?

  11. Concerned Defender says:

    If humans use designs, tools, nature, materials, whatever to artificially create an obvious barrier (moat, shrubbery, fence, pointy sticks, wall, police yellow tape “do not cross,” van doors, etc. then it is NOTICE that this area is off-limits and you are trespassing eg “housebreaking.”  
    Perhaps the term “housebreaking” should be thrown out as archaic.  A simple trespassing or entering unlawfully or beefed up terms is adequate.  We all know if there’s a fence, someone went through the effort to erect it to keep you out or stuff inside separate from the outside world.  If you’re climbing a fence, you don’t belong there.  If you’re swimming the moat, you don’t belong.  
    It’s been amended to remove the archaic “at night” references, so more amendments are obviously needed.  

  12. DCGoneGalt says:

    What about those little dug-out homes in the side of hills that Hobbits use in the Shire?

  13. Tami a/k/a Princess Leia says:

    Housebreaking requires either a building OR a “structure in use as a dwelling.”  A fence doesn’t meet the definition of “structure in use as a dwelling.”  Antin Jackson’s cardboard box, on the other hand, does. A container in use as a CHU counts for housebreaking.  A container in use as a container does not.  Hopping over a fence to steal something is an unlawful entry (no building or structure in use as a dwelling required).

  14. k fischer says:

    Zach/CD, If it is a hand dug moat, then perhaps. However, if it is a naturally appearing moat for instance, an oxbow surrounding a naturally made island, then no.  But, those areas are usually susceptible to flooding, so perhaps there would be a reasonable mistake of fact that the property was abandoned. I mean, who would store property on a flood area?
    Stewie, that’s why I had that section formatted in bold.  My question is: Why am I the only one who cited this Army case for that position?  It only took me 5 minutes to find, and I’m about as sharp as a marble.
    (Mr. Sulllivan, **Trigger warning**)  Phil, I WAS being ironically ironical. 

  15. stewie says:

    DCGG, no one cares about Hobbits, so they don’t count*
    *Unless they have a certain ring.

  16. Concerned Defender says:

    A fence can be and often is a layer of security for a dwelling, as part and parcel of the dwelling itself.  The White House for instance has a fence/wall (in spite of one political group always claiming walls are not needed), and I would argue that climbing over it and stealing something would be housebreaking.  

  17. Tami a/k/a Princess Leia says:

    Para. 56c.  Explanation.
    (4) Building, structure.  “Building” includes a room, shop, store, office, or apartment in a building. “Structure” refers only to those structures which are in the nature of a building or dwelling.
    A fence may be a “structure,” but a fence doesn’t count as a “structure” for purposes of housebreaking.

  18. Vulture says:

    The design of a fence is far to simplistic to be a structure.  Placing barrier tape around a crime scene has its own penalties for breaching but a fence is not of anymore design than that.  Structures in there normal sense require coding compliance such as spacing between studs, material spec, and wiring compliance.  That is where the security comes from, not a mere outline of possession.

  19. stewie says:

    So if I build my own house, but it isn’t up to code, it’s not housebreaking?