## UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
COOK, CAMPANELLA, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class SAMUEL A. MEIXUEIRO United States Army, Appellant

ARMY 201 20492

Headquarters, I Corps (Rear) (Pr ovisional) (convened)

Headquarters, I Corps (action)

David L. Conn, Military Judge (a rraignment )

Da vid H. Robertson , Military Judge (trial)

Colonel Kurt A. Didier , Staff Judge Advocate

For Appellant : Major Jacob D. Bashore, JA; Captain Brian D. Andes , J A (on brief).

For Appellee : Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley , JA; Major Robert A. Rodrigues, JA ; Captain Benjamin W. Hogan , JA (on br ief).

26 December 2013

-- ----------- -------- ------------ OPINION OF THE COURT

------------ ---------------------

CAMPANELLA, Judge :

A military judge sitting as a general court

- martial convicted appellant, pursuant to his pleas, of one specification of attempted larceny, one specification of

absen ce without leave, one specification of larceny, two specifications of making checks with the intent to defraud, and one specification of making and uttering worthless checks by dishonorably failing to mainta in sufficient funds, in violation of Articles 80, 86, 121, 123a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 886, 921, 923a, 934 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad

- conduct discharge, confinement for eighteen months, forfeiture of all pay and allowances, and red uction to the grade of E

- 1. Pursuant to a pretrial

agreement, t he convening authority approved only so much of the sentence asMEIXUEIRO

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provided for a bad

- conduct discharge, confinement for eleve n months, forfeiture of all pay and allowances, and reduction to the grade of E

- 1

. 1

This case is before th is court for review pursuant to Article 66, UCMJ. Appellant raise s t hree assignments of error. One assignment of error , which merits discussion, but no relief, asserts that the military judge abused his discretion by treating each insufficient ly fund ed check charged under a “mega

- specification” of
Article 134, UCMJ, as separate offense s for purposes of calculating the maximum

sentence

. The remain ing assignment s of error and those matters personally raised by appellant pursuant to United States v

. Grostefon , 12 M.J. 431 (C.M.A. 1982) are without merit.

B ACKGROUND

While stationed at Joint Base Lewis

- McChord, appellant opened a checking

accou nt with America’s Credit Union (ACU) and established automatic deposit for his military paycheck to that account . He subsequently opened another bank account at the Armed Forces Bank (AFB) and re

- directed his military pay to be automatically deposited int o his AFB account instead. Despite depletin g funds in his ACU

account, a ppellant continued to write check s against i t . From 13 September 2007 to

5 December 2007, appellant wrote forty

- three personal checks against his ACU account, totaling $7

, 740.31 . Th ese checks were honored by ACU despite the zero balance in appellant’s account.

During the providence inquiry and in the stipulation of fact, a ppellant

admitted that he knew there was no money in the account to cover the forty

- three

checks he wrote agai nst the ACU account . Appellant further admitted his ACU debit card stopped working before 13 September 2007 because there was no money in his ACU checking account

, and he received at least sixteen overdraft notices from ACU prior to 14 November 2007. He also admitted he w r o te checks against the depleted

account because he wanted money to support his gambling habit.

These forty

- three personal checks formed the basis for t he S pecification of Charge I

, making and uttering worthless checks by dishonorably failing to maintain

sufficient funds in his ACU account , a violation of Article 134, UCMJ. The checks were grouped into one specification

, but each negotiated check was separately identifiable by check date, check number, amount, and payee. Thus, rather than alleging a continuing course of conduct, the specification describe s forty

- three

1 Appellant was credited with one day of confinement against his sentence to
confinement.MEIXUEIRO

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specific individual offenses. 2 This practice results in what is commonly referred to as a “mega

- specification.”

LAW AND DISCUSSION

Appellant contends th e maximum punishment agreed upon by the military judge, government and defense prior to proceeding with the court

- martial and during

the court

- martial was incorrect. The appropriate maximum pu nishment is a question

of law which we review de novo

. United States v. Beaty , 70 M.J. 39, 41 (C.A.A.F. 2011); United States v. Inabinette, 66 M.J. 320 , 321 (C.A.A.F. 2007). Although we “review a military judge’s sentencing determination under an abuse of discretion standard, where a military judge’s decision was in fluenced by an erroneous view of the law, that decision constitutes an abuse of discretion.” Beaty , 70 M. J. at 41 (internal citation omitted).

2 On 20 December 2007, the Army Criminal Investigation Command (CID) brought appellant in for questioning regarding the forty

- three checks referenced in the Specifi cation of Charge I. Appellant was “informed” by CID that his ACU account

had been overdrawn and closed. On 24 and 26 December 2007, appellant wrote two more checks from his closed ACU account totaling $425.75. Th ese two checks formed the basis for Speci fication 1 of Charge II , alleging a violati on of Article

123a (a mega

- specification) . On 4 December 2007, appellant opened a nother checking a ccount with USAA Bank using a worthless deposit from his depleted ACU checking account. After the ACU check was r eturned non

- payable due to

insufficient funds , appellant deposited $741.90 into his USAA account

, bringing it into good standing. From 17 to 20 December 2007, he made fraudulent electronic deposits from his closed ACU account into the original USAA account as well as nine newly

- opened USAA savings and checking accounts. Within minutes of opening the nine new USAA accounts and submitting fraudulent electronic deposits from the closed ACU account, appellant transferred all the available funds from the

new US AA accounts into the original USAA checking account. Appellant then

effectuated forty

- seven debit transactions totaling $3

, 399.78 via his original USAA

account. This formed the basis for the Specification of Charge III, a violation of

Article 121 , UCMJ

. On 22 and 23 December 2007 , appellant wrote three additional bad checks from the original USAA account which had been previously depleted of

funds . This formed the basis for S pecification 2 ( also a mega

- specification) of Charge II, a violation Article 12 3a , UCMJ

. A ppellant’s original USAA account was frozen on 20 December 2007. From 4 December 2007 to 2 January 2008, appellant made several attempts to withdraw money from his USAA account. These acts
formed the basis for t he S pecification of Charge IV ; a violati on of Article 80, UCMJ, by attempting to steal additional funds from USAA B ank.MEIXUEIRO

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At the beginning of the court

- martial, the military judge discussed the maximum punishment calculation wi th counsel on the record after previously holding a Rule for Courts

- M artial [hereinafter R.C.M. ] 802 session wherein th is topic was discussed. The military judge state d in pertinent part:

[T ]here’s a disagreement between government and
defense; defense believing the maximu m punishment initially was some where in the four year range; government coming to a twenty

- six year, six month

maximum confinement. I addressed with the defense the

case of United States v. Mincey

. . . a nd then provided the

ca se law to the defense for those mega

- specifications

. . . . D efense, what is your position ? 3

Defense counsel then conceded that the government’s twenty

- six and a half

year calculation of maximum confinement punishment was correct.

Appellant now claims that the military judge erred by treating each

insufficient ly fund ed check charged under the “mega

- specification” of Charge I as a separate offense for sentencing. Appellant contends the maximum sentence for the forty

- three worthless checks charged under Article 134 , UCMJ

, should be a period of confinement of only six months, rather than the twenty

- one and a half years of

confinement which result s from considering each check separately.

While a ppellant recognizes that the Court of Appeals fo r the Armed Forces (CAAF) has held that bad checks charged under Article 123a, UCMJ, may be separately considered for sentencing by totaling what confinement each would have carried by itself to determine the maximum period of confinement

, United States v. Mincey , 42 M.J. 376 , 378 (C.A.A.F. 1995) , h e contends that Mincey is limited to

A rticle 123a, UCMJ, and its holding cannot be extended to bad checks charged under Article 134, UCMJ. We disagree.

3 We note that the defense counsel’s assertion of maximum confinement “in the four year range” appears to be premised initially on his assumption that neither C harge I and its specification, ( Article 134, UCMJ ) , nor Charge II, Specifications 1 and 2, ( Article 123a, UCMJ ) , should be count ed as a single offense for purposes of

maximum sentence calculation as opposed to a maximum treating each check within the speci fication as a separate offense. In other words, the defense counsel initially appears to have also believed the two specifications of Arti cle 123a, referencing five

separate checks, should only be counted as two occasions for maximum sentence

purposes.MEIXUEIRO

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Airman Mincey was charged with two “mega

- specifications” under Arti cle 123a

, UCMJ, alleging a total of eighteen bad checks. Drawing on R.C.M.

1003 (c) (1)(A)(i), the CAAF held that when pleaded in this manner, “the maximum punishment is calculated by the number and amount of the checks as if they had been charged separatel y, regardless whether the Government correctly pleads only one offense in each specification or whether the Government joins them in a single specification

. . . . ” Id

. The c ourt in Mincey did not restrict its holding to Article 123a, UCMJ, check offense s. The Mincey c ourt stated “[ R.C.M. ] 1003(c)( 1)(A)(i) authorizes punishment ‘ for each separate offense , not for each specification. ’ ” Id

. (emphasis in original). The court in Mincey look ed to the offenses an accused has

been convicted of to determine th e maximum punishment. Notwithstanding the joinder of multiple instances under two specification s of the charge

, Mincey was convicted of seventeen offenses of uttering bad checks, in violation of Article 123a

, UCMJ

. Id. The CAAF went on to state

, “ w e now only hold that in bad

- check cases, the maximum punishment is calculated by the number and amount of the checks as if they had been c harged separately . . . . ” Id. ( emphasis added). The Mincey analysis

has been extended to other check cases such as forgery

, reasoning that “a for ged

ch eck qualifies as a ‘bad check.’ ” United States v. Towery, 47 M.J. 514 , 515 (A.F.

Ct. Crim. App. 1997)

, petition denied

, 48 M.J. 414 ( C.A.A.F. 1997)

. In Towery , the

Air Force C ourt of Criminal Appeals held that “in cases where multiple, discrete

instances of check fo rgery are pleaded (without objection) in one specification, the maximum punishment is calculated as if they had been charged separately.” Id.

While appellant argues that Mincey does not extend to bad check offenses under Article 134, UCMJ, we do not interpret Mincey so narrowly , particularly in light of the specifics of this case. Both Article 134 and Article 123a , UCMJ,

offenses require that a check be uttered and that there be insufficient funds in the corresponding account. The key discern i ble difference between the two offenses i s that Article 134

, UCMJ, requires the failure to maintain sufficient funds in one’s

account be dishonorable

, whereas Article 123a , UCMJ, requires an intent to defraud

or deceive

. Manual for Courts

- Martial (2012 ed.), pt. IV, ¶ ¶ 49.b, 68.c

.

In crafting charges against an ac cused, the government has the option of charging each bad check written as a separate Article 134 , UCMJ, offense, or it may promote judicial economy by streamlining charge sheets and trial proceedings by

includ ing all checks in a single Article 134 , UCMJ, “mega

- specification.” The government’s charging decision in these cases does not lessen the sentencing exposure for the accused given the nature of individual instances of misconduct . If it chose to do so, the government could have ple a d ed and prove n sep arate specifications

. In a case involving an Article 134, UCMJ

, offense, e ach instance of check uttering may be counted separately for sentencing, despite being captured in a single specification. We perceive no meaningful distinction in the Mincey holdi ng as it relates to charging and maximum punishment practices related to worthless checks charged under Article 134, UCMJ. T he aggregation of the separate bad

-MEIXUEIRO

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checks was an appropriate charging decision and

, i n this case, the military judge correctly he ld that each check could be considered separately in determining the maximum possible confinement for appellant ’ s Article 134, UCMJ, violation

.

A ssum ing, however, that the military judge err ed in applying Mincey to bad

check offenses charged under Articl e 134, UCMJ, we now examine the appellant’s

assertion that he was “im provident ” because he mistakenly believed the maximum punishment was twenty

- six and a half years. We find this assertion is incongruous with appellant’s course of conduct and wholly lack s merit.

A guilty plea “may be improvident because it is ‘ predicated upon a substantial misunderstanding on the accused ’ s part of the maximum punishment to which he is subject. ’ ” United States v. Poole , 26 M.J. 272, 274 (C.M.A. 1988) (quoting U nited

States v. Windham , 15 U.S.C. M.A. 523, 525, 36 C.M.R. 21, 23 (1965) ). The United States Court of Military Appeals indicated in United States v. Harden that the analysis of an accused’s misunderstanding in that regard may “ produce different

re sults in seemingly similar cases

. . . .” 1 M.J. 258 , 260 ( C.M.A. 1976) . Our court
found in United States v. Walls , 3 M.J. 882 , 885 (A.C.M.R. 1977) that factors to be

considered include : (1) the quality and quantum of the pr etrial evidence dictated the accused to take a given course of action; (2) the degree of error in the misunderstanding of the maximum punishment; (3) the aspect of the maximum punishment that was misunderstood; (4) the relationship between the terms of the negotiated agreement and th e correct maximum punishment; (5) whether the agreement struck was realistic in light of the totality of circumstances of the case; and finally, (6) the actual impact of the misunderstood element of the plea in light of the actual sentence imposed at trial

.

Applying the foregoing principles to the facts of this case, we find that the pretrial evid ence
, from a practical viewpoint

, dictated that it would be in the best interests of this appellant to negotiate a plea in an effort to gain the most acceptabl e terms possible under the circumstances. We further find that is precisely what

occurred. Given the totality of the circumstances in this case, the pretrial agreement

was both reasonable and realistic. The evidence of appellant’s acts in this case was

remarkable. T he record clearly demonstrates the appellant was willing to submit a pretrial agreement for an eleven month confinement cap while under the notion that the maximum confinement was four years versus five and a half years

. 4

4 If Mincey were to only appl y to Article 123 a , UCMJ, offenses and not Article 134, UCMJ, offenses , (making and uttering worthless checks by dishonorably failing to maintain sufficient funds) , the maximum confinement exposure in this case wou ld be

five and a half years confinement

— not four. In that light, appellant’s confinement cap becomes even more beneficial.MEIXUEIRO

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The charges we re referred to a general court

- martial on 25 February 2012. The appellant’s offer to plead was submitted on 23 March 2012. The convening

authority signed the agreement on 2 April 2012

. The appellant was arraigned on 16 April 2012 by Judge C onn

. Judge Conn was subsequently replaced by Judge

R obertson . At the beginning of the court

- martial on 15 May 2012, Judge Robertson

stated:

[I] n a previous 802 session with counsel for both sides

present prior to trial today . . . the issue of what is the

maximum punishment was also discussed. There’s a disagreement between government and defense; defense believing that the maximum punishment was somewhere in the four year range ; government coming to a twenty

- six year six month maximum. I addressed with the defe nse the case of United States v. Mincey

. . . and then provided

the case law to defense for those mega

- specs . . . .

(emphasis added).

Based on the record of trial, it is clear to this court that appellant believed he was facing a maximum of only four years confinement versus twenty

- six and half

years at the time he submitted the deal to the convening authority . This leads us to

the unavoidable conclusion that appellant was indeed provident even if the military judge erred in his calculations because app ellant was willing to submit a deal that

included an eleven

- month confinement ceiling b eliev ing the maximum was only “in the four year range.”

Next we turn to the sentence. Even if we assume error under the circumstances, w e discern no prejudice to the appellant in the military judge’s calculation of the maximum punishment. We note appellant freely admitted the

numerous occasions he uttered bad checks by dishonorably failing to keep money in

his account. The providence inquiry and t he stipulation of fact reveal the brazen

nature of his fraudulent course of conduct, even while under criminal i nvestigation. Additionally, appellant’s defense counsel argue d for the judge to impose eighteen months confinement and adjudge no punitive disc harge.

W e are confident that based on the entire record a nd the relative severity of appellant’s course of conduct , the military judge, sitting alone as a general court

martial

, would have imposed the same sentence

— including at le ast eighteen months

con finement

— regardless of the difference between the maximum sentence to

confinement we have embraced versus that which appellant urge s us to adopt.MEIXUEIRO

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8 CONCLUSION

On consideration of the entire record, we hold the findings of guilty and

sentence as approved by the convening authority correct in law and fact. Accordingly, the findings of guilty and the sentence are AFFIRMED.

Senior Judge COOK and Judge HAIGHT concur.

ANTHONY O. POTTINGER

Chief Deputy Clerk of Court FOR THE COURT: