United States v. Michaels

OPINION OF THE COURT JONES, Senior Judge: The appellant was convicted of two counts of larceny and two counts of aceesso [848] ry after the fact in violation of Articles 121 and 78, Uniform Code of Military Justice, 10 U.S.C. §§ 921 and 878. We are reviewing the case pursuant to Article 66, UCMJ, 10 U.S.C. § 866. The appellant has assigned several errors which we will discuss. The appellant was charged with six specifications of larceny of food items from the club system in Korea. He pleaded guilty to four of the offenses in accordance with a pretrial agreement and the remaining two were dismissed by the convening authority. The military judge determined that two of the pleas to larceny were improvident whereupon the appellant amended his pleas as to those offenses to pleas of guilty by exceptions and substitutions to the offenses of accessory after the fact to larceny. All pleas were then accepted. I The appellant maintains his pleas were improvident because his testimony raised the defense of coercion. We disagree. The appellant’s testimony at most raises only the possibility of such a defense. This is insufficient to improvidence the plea. United States v. Logan, 22 U.S.C.M.A. 349, 47 C.M.R. 1 (1973). Twice during the guilty plea inquiry the appellant stated that he was “afraid” and “scared” when dealing with the Koreans and when participating in the thefts. At no time, however, did he say he was afraid for his safety or scared of immediate harm to his person. Such fear is not reasonably inferred from his testimony. No threats were ever made to him by the Koreans. They told him they were watching him, to keep his mouth shut, and not to worry about anything. Rather than being threats, these statements appear to be nothing more than reassurances to appellant to allay his fears of being discovered. He cannot now on appeal convert the fear of being caught in the larceny scheme into a fear of injury raising the defense of coercion. II The appellant contends his pleas to the two larceny offenses were improvident because his role in the scheme was not sufficient to make him a principal. Again we disagree. The appellant, a noncommissioned officer in charge of a warehouse in the club system, was entertained on several occasions by Koreans working in the system. The Koreans solicited the appellant to join in a scheme of stealing food. The appellant states he rejected each offer. Subsequently, the appellant discovered that thefts were occurring during a portion of the acquisition, transportation, and storage procedure for which he was responsible. His signature on false requisition forms facilitated the thefts. When he became aware of this, the Koreans paid him to keep quiet and to allow the thefts to continue. Appellant, therefore, by continuing to sign the forms, permitting the food to be diverted from the clubs by the Koreans without either preventing it or reporting it, and accepting money for his participation, became an aider and abettor who was equally liable as a principal. III Appellant argues that his pleas by exceptions and substitutions to the accessory offenses were impermissible. He states that they resulted in his being convicted of different offenses from those charged; offenses that were not lesser included in the charges upon which he was arraigned; and offenses which were neither sworn nor referred to the court for trial by the convening authority. The appellant is correct in stating that the accessory offenses were different from and not lesser included in the larceny charges upon which he was arraigned; and that the accessory charges were unsworn and were not referred to trial. On the other hand the appellant himself offered the substitute plea; the offenses were related; he was not misled in any manner in his defense; and he is protected from further jeopardy on the offenses. The convening authority, by approving an amendment to the pretrial agreement providing for the [849] change, in effect referred the modified charges to trial and provided the jurisdictional basis for the continued proceedings. While we do not approve the procedure followed in this case, we think appellant’s initiation of the change and his failure to object at the trial waived any error from the defect. United States v. Clark, 49 C.M.R. 192 (A.C.M.R. 1974). IV Another facet of the accessory offenses concerns whether appellant can be tried for a violation of Article 78, UCMJ, 10 U.S.C. § 878, when the principal actor is a person not subject to the Uniform Code. Article 78 provides: “Accessory after the fact Any person subject to this chapter who, knowing that an offense punishable by this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a court-martial may direct.” Appellant argues that since the principal offender, a Korean, committed no offense punishable by the Code, his (the appellant’s) actions could not be a violation of the Code. This point was settled several years ago by the Air Force Board of Review in United States v. Blevins, 34 C.M.R. 967, 979 (A.F.B.R. 1964), wherein the Board held the “offense punishable by this chapter” language of Article 78 referred to the nature of the criminal act, i. e., larceny, rather than to the status of the principal offender. We reaffirm that position. V A final error concerns the language of the convening order which announced that a special rather than a general court-martial was convened. This clerical error has been satisfactorily corrected and presents no impediment to this court-martial. The findings of guilty and the sentence are affirmed. Judge DeFORD concurs.