United States v. Searles

Opinion of the Court Quinn, Chief Judge: This appeal brings up for review the law officer’s instructions on the sentence. The accused was convicted of eight specifications of forgery and four specifications of larceny, in violation of Articles 123 and 121, Uniform Code of Military Justice, 10 USC §§ 923 and 921, respectively. The offenses involved four checks. On different days, the accused forged the name of the drawer to a check, and cashed it as the designated payee. In separate specifications, the accused was charged with the making, the issuing, and the cashing of each check. At trial, the law officer instructed the court-martial that the maximum confinement was twenty years. Apparently, he considered that each group of specifications alleging the making, the issuing, and the cashing of a check constituted a single offense for the purpose of punishment.1 He did not, however, instruct the court-martial that the offenses were less numerous than appeared from the findings of guilty. The accused contends the omission was prejudicial to him in that the number of apparent offenses could reasonably have influenced the court-martial to adjudge a more severe punishment than it might have imposed under limiting instructions. On the other hand, the Government maintains that if the law officer erred at all, he erred in favor of the accused because forging and uttering are separately punishable acts; and, therefore, the maximum confinement to which the accused was subject was forty years. United States v Gibbons, 11 USCMA 246, 29 CMR 62. Under the Government’s argument of the separability of punishment of making and uttering a forgery, the law officer’s misstatement of the maximum punishment so clearly benefited the accused that there is no reasonable basis whatever to claim the failure to specify the number of offenses upon which the maximum was predicated was prejudicial to him. However, apart from whether the maximum period of confinement to which the accused was subject was twenty years or forty years, there is no merit in his allegation of prejudice. In United States v Green, 9 USCMA 585, 26 CMR 365, the accused was found guilty of housebreaking, escape from confinement, and absence without leave. The latter two offenses were committed at the same time, and were not separately punishable. As a result, the maximum punishment for these two apparently separate offenses was one year, rather than one year for the confinement offense and one year for the absence offense. The law officer instructed the court-martial that the maximum sentence included confinement at hard labor for six years. He did not inform the court-martial that the escape and unauthorized absence offenses were not separate for punishment purposes. The accused was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for three years. .The case came to this Court to review the effect of the law officer’s failure to advise the court-martial that for sentence purposes there were two, not three offenses. We held that the omission did not prejudice the accused. To the extent the law officer here instructed on. the maximum for all the offenses, this case is like United States v Green, supra. See also United States v Nelson, 3 USCMA 482, 484, 13 CMR 38; United States v Peoples, 22 CMR — 645 — 772, affirmed, 7 USCMA 534, 22 CMR 324. In addition, the adjudged penalty is far below the maximum given by the law officer. It -is so substantially less that it provides compelling proof the court members were not adversely disposed toward the accused by reason of the apparent number of offenses committed by him. As in the Green case, therefore, we conclude that the accused was not prejudiced by the law officer’s failure to apprise the court-martial of the multiplicious nature of some of the findings of guilty. The decision of the board of review is affirmed. Judge Kilday concurs. Footnotes [1] The parties agree that the uttering and the larceny specifications were not separate acts for the purpose of punishment. See United States v Jackson, 13 USCMA 66, 32 CMR 66; United States v Tucker, 29 CMR 790. They disagree as to whether, under the circumstances of the case, the making and uttering specifications are subject to the same limitation. See United States v Gibbons, 11 USCMA 246, 29 CMR 62.