U.S. v. Binegar, 55 M.J. 1

Core Criminal Law Subjects: Crimes: Article 121 - Larceny and Wrongful Appropriation Pre-2019 offenses

1. an honest mistake of fact as to a soldier’s entitlement or authorization to take property is a defense to a charge of larceny under Article 121, UCMJ, one element of which is the specific intent to steal
2. a military superior’s permission to his subordinate to dispose of government property to other servicemembers is not the type of fact which is unrelated to a specific intent of the subordinate to steal from the Government; therefore, any mistake of fact must only be honest to provide a defense
3. (military judge’s instructional error informing the members that appellant’s mistake must have been both honest and reasonable, rather than only honest in order to provide a defense to larceny was materially prejudicial where: (1) the instruction placed a lesser burden on the government to prove appellant’s guilt because it could secure his conviction by disproving either the honesty or the reasonableness of the mistake; (2) trial counsel exploited the erroneous instruction in his findings argument; and (3) the government presented a substantial case on the unreasonableness of appellant’s conduct, creating a reasonable possibility that the members resolved this case against appellant on this basis

Core Criminal Law Subjects: Defenses: Mistake of Fact

1. an honest mistake of fact as to a soldier’s entitlement or authorization to take property is a defense to a charge of larceny under Article 121, UCMJ, one element of which is the specific intent to steal
2. in order to determine whether an alleged mistake must only be honest, or both honest and reasonable, the pertinent inquiry is whether the purported mistake concerns a fact which would preclude the existence of some required specific intent
3. a military superior’s permission to his subordinate to dispose of government property to other servicemembers is not the type of fact which is unrelated to a specific intent of the subordinate to steal from the Government; therefore, any mistake of fact must only be honest to provide a defense
4. military judge’s instructional error informing the members that appellant’s mistake must have been both honest and reasonable, rather than only honest in order to provide a defense to larceny was materially prejudicial where: (1) the instruction placed a lesser burden on the government to prove appellant’s guilt because it could secure his conviction by disproving either the honesty or the reasonableness of the mistake; (2) trial counsel exploited the erroneous instruction in his findings argument; and (3) the government presented a substantial case on the unreasonableness of appellant’s conduct, creating a reasonable possibility that the members resolved this case against appellant on this basis

Trial Stages: Appeals: Harmless / Prejudicial Error

1. (military judge’s instructional error informing the members that appellant’s mistake must have been both honest and reasonable, rather than only honest in order to provide a defense to larceny was materially prejudicial where: (1) the instruction placed a lesser burden on the government to prove appellant’s guilt because it could secure his conviction by disproving either the honesty or the reasonableness of the mistake; (2) trial counsel exploited the erroneous instruction in his findings argument; and (3) the government presented a substantial case on the unreasonableness of appellant’s conduct, creating a reasonable possibility that the members resolved this case against appellant on this basis