UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant SAUL M. BOOKMAN

United States Air Force

ACM 38342

31 March 2014

Sentence adjudged 22 January 2013 by G CM convened at Buckley Air
Force Base, C olorado . Military Judge: Christopher M. Schumann (sitting alone).

Approved S entence: Bad

- conduct discharge, confinement for 8 months,

and reduction to E

- 1

.

Appellate Counsel for the Appellant: Captain Isaac C. Kennen

.

Appellate Counsel for the United States: Colonel Don M . Christensen ; Major Jason M. Kellhofer ; and Gerald R. Bruce, Esquire

.

Before

ROAN, HELGET

, and WEBER Appellate Military Judges

This opinion is subject to editorial correction before final release

.

PER CURIAM:

A general court

- martial composed of a mi litary judge sitting alone convicted the appellant

, in accordance with his pleas

, of nine specifications of larceny

, in violation of Article 121, UCMJ, 10 U.S.C. § 921. The court sentenced the appellant to a bad

- conduct discharge, confinement for 8 months

, and reduction to E

- 1. With the exception of deferring and waiving the mandatory forfeitures, the convening authority approved the adjudged sentence.

Before this Court, the appellant raises three assignments of error: (1) Whether the

s taff j udge a dvocate’s r ecommendation (SJAR) contained plain and prejudicial error

because it inaccurately stated that the appellant “was convicted of having committed60 different thefts over the course of a single year” and the appellant “pleaded guilty to stealing more than $30,500

, ” when the appellant actually was convicted of, and pled guilty to

, committing only 41 thefts for a total amount of $15,797; (2) Whether

S pecifications 2 and 4, 6 and 7, and 8 and 9 of the C harge are multiplicious; and (3) Whether the se ntence in this case i s inappropriately severe. Finding no error that materially prejudices a substantial right of the appellant, we affirm.

Background

In 2010, the appellant was assigned to the 320 th Training Squadron (320 TRS) at

Lackland Air Force B ase , T exas . While assigned there , he was also the President of the

320 th TRS Booster Club, which was a private organization. As the President of the Booster Club, the appellant exercised control over the Booster Club’s finances ; had

access to the Booster Club debit card, checking account

, and bank records ; and managed the Booster Club ledger for recording its transactions. The appellant was authorized to make deposits and payments on behalf of the Booster Club.

From approximately 5 April 2010 to 31 December 2010, on 41 separate occasions, the appellant stole almost $15,800 from the 320th TRS Booster Club. In April 2010, while on leave in Massachusetts, the appellant used the Booster Club debit card to withdraw $302 cash from a local Automatic Telle r Machine ( ATM ) to pay a friend for baseball tickets. From 14 July 2010 to 5 August 2010, the appellant was on leave in Arizona and Nevada. During this period, he used the debit card to make several cash withdrawals from various ATMs. He used the money for his own personal use and enjoyment, such as playing golf, paying for hotels, food and gas, and paying for gambling at casinos in Las Vegas

.

From 5 November 2010 to 29 November 2010, the appellant used the Booster Club debit card to purchase an airl ine ticket for a friend to accompany him to Arizona and to withdraw cash for his own personal use. The appellant also used the Booster Club checking account to write himself a check in the amount of $1,000. He annotated on the

check that it was for a cha ritable donation to the Fisher House, but instead he deposited the check in his personal bank account to use for an upcoming trip to Arizona.

From 1 December 2010 to 29 December 2010, the appellant used the Booster Club

debit card to make numerous cas h withdrawals for his own personal use, to include purchasing a suit for the squadron Christmas party, purchasing Christmas presents

, and purchasing tickets to a college bowl game.

To conceal his misconduct from the Booster Club, the appellant fals ified the Booster Club ledger by entering what appeared to be legitimate transactions.

ACM 38342 2Post

- Trial Processing

On 10 April 2013, the s taff j udge a dvocate (SJA) signed the Addendum to the SJAR. In paragraph 4, the SJA erroneously stated:

[The appellant] was convicted of having committed 60 different thefts over the course of a single year, while he was the president of his former squadron’s booster club

. . . . In total, [the appellant] pleaded guilty to stealing more than $30,500 (Record of Trial, Volume 3, Prosecution Exhibit 1), which he used for his own personal benefit, to include personal purchases and funding trips to Las Vegas, Nevada.

( e mphasis added).

According to the stipulation of fact in this case, the parties agreed the appellant

committed only 41 thefts for a total amount of $15,797. Furthermore, in sentencing, the trial counsel argued the same number of thefts and total amount stolen consistent with the stipulation of fact. On appeal, the appellant asserts that as a result of the error in the

SJAR Addendum , we should reassess his sentence and decline to affirm the bad

- conduct discharge.

To obtain relief based on an error in the SJAR or its Addendum , the appellant

must: (1) allege the error at the Court of Criminal Appeals; (2) allege prejudice resulting from the error; and (3) show what he would do to resolve the error if given the opportunity. See United States v. Wheelus , 49 M.J. 283, 288 (C.A.A.F. 1998). Considering the highly discretionary nature of the convening authority’s act ion, “there is material prejudice to the substantial rights of an appellant if there is an error and the appellant ‘ makes some colorable showing of possible prejudice.’” Id

. at 289 (q uoting United States v. Ch atman , 46 M.J. 321, 323

- 24) (C.A.A.F. 1997) )

. “If the appellant makes such a showing, the Court of Criminal Appeals must either provide meaningful relief or return the case to the Judge Advocate General concerned for a remand to a convening authority for a new posttrial recommendation and action.” I d

.

Pursuant to Rule for Courts

- Martial 1106(d)(6), “ [i] n case of error in the

recommendation

. . . appropriate corrective action shall be taken by appellate authorities without returning the case for further action by a convening authority.”

In his clem ency request, the appellant requested the convening authority reduce his confinement by two months and enter him into the Return to Duty Program (RTDP). In support of his request, the appellant submitted a recommendation from the military judge, his comma nder who preferred the charge in this case

, plus eight other letters.

ACM 38342 3On appeal, the appellant asserts he was materially prejudiced by the errors in the

SJAR Addendum because they grossly exaggerated his culpability

, thereby hindering the multiple recom mendations that he be entered into the RTDP. The appellant claims the only meaningful relief is for this Court not to affirm his punitive discharge. We disagree.

Despite the errors in the SJAR Addendum, there is significant aggravation

evidence in this case. The 41 thefts occurred over a one

- year period; the appellant was

the P resident of the 320 th Booster Club and intentionally concealed the thefts in the Booster Club ledger, including falsely claiming some of the money had been used for a

charitable d onation; and the appellant used the stolen funds for his personal use, to include funding trips to Las Vegas, Nevada. Additionally, the appellant underwent a psycho

- social evaluation as required for the RTDP application , and the evaluating provider, Dr. D B

, recommended against the appellant’s admission in to the RTDP.

After considering the entire record of trial, we find the appellant has not made a colorable showing of possible prejudice. We are convinced the convening authority

would have taken the sam e action had he been advised of the correct number of thefts and total amount stolen by the appellant.

Multiplicity

For the first time on appeal, the appellant asserts that S pecifications 2 and 4, 6 and 7, and 8 and 9 of the Charge are multipliciou s.

This Court reviews multiplicity issues de novo. See United States v. Anderson

, 68 M.J. 378, 385 (C.A.A.F. 2010). Multiplicity in violation of the Double Jeopardy

Clause of the Constitution 1 occurs when “‘a court, contrary to the intent of Congress,

i mposes multiple convictions and punishments under different statutes for the same act or

course of conduct.’” Id

. (quoting United States v. Roderick , 62 M.J. 425, 431 (C.A.A.F. 2006)) (emphasis omitted). Accordingly, an accused may not be convicted and

p unished for two offenses where one is necessarily included in the other, absent congressional intent to permit separate punishments. See United States v. Teters

, 37 M.J. 370, 376 (C.M.A. 1993). Where legislative intent is not expressed in the statute

or its legislative history, “it can also be presumed or inferred based on the elements of the violated statutes and their relationship to each other. Id . at 376

- 77. The Supreme Court laid out a “separate elements test” for analyzing multiplicity issues: “T he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact w hich the other does not.” Blockburger

v. United States , 284 U.S. 299, 304 (1932). Accordingly, multiple convictions and punishments are permitted for a distinct act if the two charges each have at least one

1 U.S. C ONST . amend. V.

ACM 38342 4separate statutory element from each other. Ab sent a timely motion at trial, an unconditional guilty plea waives a multiplicity claim on appeal absent plain error.

See United States v. Hudson , 59 M.J. 357 , 358 (C.A.A.F. 2004)

, overruled in part on other grounds by United States v. Jones , 68 M.J. 4 65 (C.A.A.F. 2010).

Article 121, UCMJ, Larceny, contains the following elements:

(a) T hat the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person;

(b) That the property belonged to a certain person;

(c) That the property was of a certain value, or of some value; and

(d) That the taking, obtaining, or withholding by the accused was with the intent permanently to deprive or defraud another person of the use and benefit of the property or permanently to appropriate the property for the use of the accused or for any person other than the owner.

Manual for Courts

- Martial

, United States ( MCM ) , Part IV, ¶ 46.b.(1) (2 012 ed.).

In this case, all of the transactions are specifically describ ed in detail in the stipulation of fact. The main difference between S pecifications 2 and 4, 6 and 7, and

8 and 9 is that S pecifications 2, 6 and 8 allege the theft of cash in an amount “equal to or less than $500

, ” while S pecifications 4, 7 and 9 allege the theft of cash “of a value of more than $500. This is due to the maximum punishment allowed. For larceny of non

military property of a value of $500 or less, the maximum punishment is a bad

- conduct discharge, forfeiture of all pay and allowances

, and confinement for 6 months. For larceny of non

- military property of a value of more than $500, the maximum authorized punishment is a dishonorable discharge, forfeiture of all pay and allowances

, and confinement for 5 years. MCM , Part IV, ¶ 46.e.(1)(b)

, (d )

.

We find under the circumstances of this case, the said specifications are not multiplicious. All of the se specifications involve more than one theft that occurred on divers occasions and the alleged timeframe for each specification is different. For

S pecifications 2 and 4, the larcenies under S pecification 2 occurred on separate dates, at separate locations

, and for different amounts than the larcenies that occurred under

S pecification 4. For S pecifications 6 and 7, the larcenies under S pecification 6 occurred

on different dates and for different amounts than the larcenies under S pecification 7. For

S pecifications 8 and 9, most of the larcenies under S pecification 8 occurred on different

dates and for different amounts than the larcenies under S pecif ication 9. Specifications

8 and 9 each allege that a larceny occurred on 15 December 2010, however, the amounts

and locations are different.

ACM 38342 5Accordingly, the appellant has failed to show that the specifications were multiplicious, and no error, plain o r otherwise, occurred in this case.

Sentence Severity

The appellant asserts his sentence consisting of a bad

- conduct discharge and confinement for eight months is inappropriately severe. We disagree.

This Court reviews sentence appropriateness de no vo. See United States v. Lane

, 64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only

. . . the sentence or such part or amount of the sentence, as [we find] correct in law and fact and determine[], on the basis of the entire record, should be approved.” Art icle 66(c), UCMJ, 10 U.S.C. § 866(c). We assess sentence appropriateness by considering the particular appellant, the nature and seriousness of the offenses, the appellant’s record of service, and all matters contained in

the record of trial. See United States v. Snelling , 14 M.J. 267, 268 (C.M.A. 1982); United

States v. Bare , 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d , 65 M.J. 35 (C.A.A.F. 2007). We have a great deal of discretion in determining whether a particular sentence is appropriate, but are not authorized to engage in exercises of clemency.

See United States v. Nerad , 69 M.J. 138, 146 (C.A.A.F. 2010); United States v. Healy

, 26 M.J. 394, 395

- 96 (C.M.A. 1988).

The appellant argues that the adjudge d and approved sentence shows the impact of the alleged multiplication of charges and errors in the SJAR, and the failure to consider the appellant’s lack of any prior offenses, his outstanding duty performance, his combat

service

, and the fact he pled guilty.

The maximum punishment in this ca se was a dishonorable discharge, confinement for 18 years, forfeiture of all pay and allowances

, and reduction to E

- 1. A pretrial agreement entered into between the parties capped confinement at 20 months. During its sentencing argument, the Government a rgued for a dishonorable discharge and confinement for 24 months. In response, the trial defense counsel recommended confinement for 8 months and, in exchange for no additional confinement, a bad

- conduct discharge. During his argument, t rial defense coun sel also highlighted the appellant’s strong duty performance

, his rehabilitative potential , a nd his guilty plea . The military judge must have considered these matters because he concurred with the trial defense

counsel’s recommendation and sentenced the a ppellant to a bad

- conduct discharge and

confinement for 8 months. Additionally, the military judge submitted a post

- trial recommendation for the appellant to be offered an opportunity to participate in the
RTDP, which indicates he considered the appellant ’s mitigating factors. The military judge stated, “While I obviously recognize the serious nature of the misconduct [the appellant] pled guilty to, his plea of guilty coupled with his sincere expression of

ACM 38342 6remorse and the absence of any other misconduct i n an otherwise commendable ca reer

warrants an opportunity for participation in the program. ” 2

We have examined the entire record of trial and all of the circumstances in this case and find that the appellant’s approved sentence correctly reflects the gr avity of the 41 larcenies he committed and is not inappropriately severe.

Conclusion

The approved findings and sentence are correct in law and fact

, and no error materially prejudicial to the substantial rights of the appellant occurred. Article s 59( a)

and 66(c), UCMJ

, 10 U.S.C. § § 859(a), 866(c) . Accordingly, the approved findings and

sentence are

A FFIRMED.

FOR THE COURT

LAQUITTA J. SMITH Appellate Paralegal Specialist

2 After announcing the sentence, the military judge also recom mended the convening authority waive mandatory forfeitures to be paid to the appellant’s dependents.

ACM 38342 7