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.