U.S. v. Hines, 73 M.J. 119

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. in determining whether a guilty plea is provident, the military judge may consider the facts contained in the stipulation of fact along with the inquiry of the accused on the record
2. if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea

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

1. 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; thus, under the circumstances of this case, each specification properly aggregated money wrongfully obtained on a recurring basis and alleged a larceny or wrongful appropriation of military property of a value greater than $500.00
2. multiple article larceny is to be charged as a single larceny when a larceny of several articles is committed at substantially the same time and place and the articles belong to different persons
3. there can be a continuing larceny of an aggregated amount even though monthly amounts were not taken at substantially the same time and place; whether there were separate offenses each month or a single offense aggregating all months, 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; facts important to this analysis include the state of mind or intent of the actor prior to and simultaneously with the first taking, and also, evidence of acts done by the accused, either in preparation for the several takings or as an integral part of the first taking, which facilitate the subsequent takings or in some way aid the accused in accomplishing them
4. if all that can be attributed to an 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
5. an accused’s wrongful receipt of basic allowance for housing payments over several months constituted one offense of wrongful appropriation for the total amount, rather than multiple offenses for the amount received in each instance, where all the payments resulted from his failure to apprise finance that he no longer had dependents, as he acknowledged he was obligated to do; it was that failure to act that provided the means by which he received money to which he was not entitled on a recurring basis of a total value over $500.00
6. an accused’s wrongful receipt of basic allowance for housing and family separation allowance payments over several months constituted two offenses of larceny, rather than multiple offenses for the amount received in each instance, where all the payments resulted from the affirmative acts of completing military forms, which fraudulently stated he remained married to his ex-wife; there is no question that the submission of these forms was the mechanism for the taking or diversion of sums of money on a recurring basis of a total value over $500.00
7. under the circumstances of this case, aggregation of the monthly amounts paid on a recurring basis into three specifications alleging a value over $500.00, where there were three distinct mechanisms by which money was wrongfully received at three different locations, was appropriate

Trial Stages: Merits: Guilty Pleas

1. in determining whether a guilty plea is provident, the military judge may consider the facts contained in the stipulation of fact along with the inquiry of the accused on the record
2. if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea
3. to the extent that the military judge’s inquiry into the providence of an accused’s guilty pleas to two larceny specifications revealed an inconsistency between his pleas to the entire amount of basic allowance for housing in light of his apparent entitlement to a lesser amount, it was resolved when the accused made very clear that the condition precedent for being entitled to any basic allowance for housing had not been fulfilled

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

1. the question whether wrongful receipt of money on a recurring basis constitutes one crime for the total amount, or multiple offenses for the amount received in each instance, is a question of law, which an appellate court reviews de novo
2. an appellate court must find a substantial conflict between the plea and the accused’s statements or other evidence in order to set aside a guilty plea; the mere possibility of a conflict is not sufficient