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 20120492

Headquarters, I Corps (Rear) (Provisional) (convened)

Headquarters, I Corps (action)

David L. Conn, Military Judge (arraignment)

David H. Robertson, Military Judge (trial)

Colonel Kurt A. Didier, Staff Judge Advocate

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

 26 December 2013

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 OPINION OF THE COURT

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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 

absence 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 maintain 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 reduction to the grade of E-1. Pursuant to a pretrial

agreement, the convening authority approved only so much of the sentence as 
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provided for a bad-conduct discharge, confinement for eleven months, forfeiture of 

all pay and allowances, and reduction to the grade of E-1.

1

 

This case is before this court for review pursuant to Article 66, UCMJ. 

Appellant raises three assignments of error. One assignment of error, which merits 

discussion, but no relief, asserts that the military judge abused his discretion by 

treating each insufficiently funded check charged under a “mega-specification” of 

Article 134, UCMJ, as separate offenses for purposes of calculating the maximum 

sentence. The remaining assignments 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. 

 BACKGROUND

While stationed at Joint Base Lewis-McChord, appellant opened a checking 

account 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 into his AFB account instead. Despite depleting funds in his ACU 

account, appellant continued to write checks against it. From 13 September 2007 to 

5 December 2007, appellant wrote forty-three personal checks against his ACU 

account, totaling $7,740.31. These checks were honored by ACU despite the zero 

balance in appellant’s account. 

During the providence inquiry and in the stipulation of fact, appellant 

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

checks he wrote against 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 wrote checks against the depleted 

account because he wanted money to support his gambling habit. 

These forty-three personal checks formed the basis for the Specification 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. 
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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 the 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 punishment 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 influenced 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 

Specification 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. These two checks 

formed the basis for Specification 1 of Charge II, alleging a violation of Article 

123a (a mega-specification). On 4 December 2007, appellant opened another

checking account with USAA Bank using a worthless deposit from his depleted ACU 

checking account. After the ACU check was returned 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 USAA 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 Specification 2 (also a mega-specification) of

Charge II, a violation Article 123a, UCMJ. Appellant’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 the Specification of Charge IV; a violation of Article 80, 

UCMJ, by attempting to steal additional funds from USAA Bank. 
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At the beginning of the court-martial, the military judge discussed the 

maximum punishment calculation with counsel on the record after previously 

holding a Rule for Courts-Martial [hereinafter R.C.M.] 802 session wherein this

topic was discussed. The military judge stated in pertinent part: 

[T]here’s a disagreement between government and 

defense; defense believing the maximum punishment 

initially was somewhere 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 . . . and then provided the 

case law to the defense for those mega-specifications . . . . 

Defense, 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 

insufficiently funded 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 results from considering each check separately. 

 While appellant recognizes that the Court of Appeals for 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), he contends that Mincey is limited to 

Article 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 Charge I 

and its specification, (Article 134, UCMJ), nor Charge II, Specifications 1 and 2, 

(Article 123a, UCMJ), should be counted as a single offense for purposes of 

maximum sentence calculation as opposed to a maximum treating each check within 

the specification 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. 
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 Airman Mincey was charged with two “mega-specifications” under Article 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 separately, regardless whether the Government correctly pleads only one 

offense in each specification or whether the Government joins them in a single 

specification . . . .” Id. The court in Mincey did not restrict its holding to Article 

123a, UCMJ, check offenses. The Mincey court 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 looked to the offenses an accused has 

been convicted of to determine the maximum punishment. Notwithstanding the 

joinder of multiple instances under two specifications 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, “we 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 charged separately . . . .” Id. (emphasis added). The Mincey analysis 

has been extended to other check cases such as forgery, reasoning that “a forged 

check 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 Court of Criminal Appeals held that “in cases where multiple, discrete 

instances of check forgery 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 discernible difference between the two offenses is 

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 accused, 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 

including 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 pleaded and proven separate 

specifications. In a case involving an Article 134, UCMJ, offense, each 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 holding 

as it relates to charging and maximum punishment practices related to worthless 

checks charged under Article 134, UCMJ. The aggregation of the separate bad-
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checks was an appropriate charging decision and, in this case, the military judge 

correctly held that each check could be considered separately in determining the 

maximum possible confinement for appellant’s Article 134, UCMJ, violation.

Assuming, however, that the military judge erred in applying Mincey to badcheck offenses charged under Article 134, UCMJ, we now examine the appellant’s 

assertion that he was “improvident” 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 lacks 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 United

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 

results 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 pretrial 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 the 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 evidence, 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. The 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 apply to Article 123a, 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 would be 

five and a half years confinement—not four. In that light, appellant’s confinement 

cap becomes even more beneficial. 
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The charges were 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 Conn. Judge Conn was subsequently replaced by Judge 

Robertson. 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 defense 

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 appellant was willing to submit a deal that 

included an eleven-month confinement ceiling believing the maximum was only “in 

the four year range.” 

Next we turn to the sentence. Even if we assume error under the 

circumstances, we 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 the stipulation of fact reveal the brazen 

nature of his fraudulent course of conduct, even while under criminal investigation. 

Additionally, appellant’s defense counsel argued for the judge to impose eighteen 

months confinement and adjudge no punitive discharge. 

We are confident that based on the entire record and the relative severity of 

appellant’s course of conduct, the military judge, sitting alone as a general courtmartial, would have imposed the same sentence—including at least eighteen months 

confinement—regardless of the difference between the maximum sentence to 

confinement we have embraced versus that which appellant urges us to adopt. 
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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: