U.S. v. Aleman, 62 M.J. 281

Core Criminal Law Subjects: Crimes: Article 108 - Military Property of the U.S.-Sale, Loss, Damage, Destruction, or Wrongful Disposition Pre-2019 offenses

1. Article 108(3), UCMJ, provides for the trial by court-martial of a person who, without proper authority willfully or through neglect suffers to be lost, damaged, sold, or wrongfully disposed of any US military property; in this context, suffers means to allow or permit; the five elements of the offense are: (1) that certain property was sold; (2) that the property was military property of the United States; (3) that the sale was suffered by the accused, without proper authority, through a certain omission of duty by the accused; (4) that the omission was willful or negligent; and (5) that the property was of a certain value; the reference to omission in the third and fourth elements is significant because the prosecution must prove a duty and the failure to do the duty

Trial Stages: Merits: Guilty Pleas

1. before accepting a plea of guilty, the military judge must conduct an inquiry of the accused to determine whether there is a factual basis for the plea and whether the accused understands the plea and enters it voluntarily; the accused must admit every element of the offense to which the accused is pleading guilty
2. appellant’s guilty plea to suffering the sale of military property was improvident where the inquiry did not establish a factual basis for the third element, i.e. that the sale of the property was suffered by a certain omission of duty by appellant; the record shows, and the government acknowledges, that other than a listing of the third element, there was no discussion of any duty on the part of appellant during the providence inquiry; the military judge did not elicit any testimony from appellant regarding any duty he may have had to safeguard the property, and appellant did not articulate such a duty; in addition, none of the statements in appellant’s stipulation of fact recognized the existence of a duty to safeguard the property; without an admission by appellant or any other evidence in the record establishing this element of the offense, the plea lacked the requisite factual basis
3. where the plea inquiry into suffering the sale of military property was deficient due to the lack of discussion of a duty on the part of appellant to safeguard the property, appellant’s conviction could have been upheld if the plea inquiry was sufficient to sustain a conviction for the closely related offense of selling military property, a crime for which there is no omission of duty element; the offense of selling military property under Article 108(1) requires a showing that the accused sold the property; in this case, that element may have been satisfied through an aiding and abetting theory; however, because the military judge did not advise appellant as to such a theory and appellant did not articulate an understanding of such a theory, the plea to the closely related offense was not provident
4. it is appropriate to rely upon stipulations of fact to establish a factual basis for a guilty plea

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. under an appellate court’s standard of review for assessing the providence of a guilty plea, the plea will be rejected only where the record of trial shows a substantial basis in law and fact for questioning the plea