2010 (September Term)
United States v. Arriaga, 70 M.J. 51 (the elements of housebreaking are (1) that the accused unlawfully entered a certain building or structure of a certain other person, and (2) that the unlawful entry was made with the intent to commit a criminal offense therein).
(regardless of whether one looks strictly to the statutory elements or to the elements as charged, housebreaking is a lesser included offense of burglary; comparing the statutory elements, it is impossible to prove a burglary without also proving a housebreaking; furthermore, the offense as charged in this case clearly alleges the elements of both offenses; here, the “intent” element of burglary was charged as the intent to commit an offense under Article 120, UCMJ; that charging language also satisfies the “intent” element of housebreaking (intent to commit a criminal offense); while in another case it may be possible to prove a housebreaking offense by proving the intent to commit a criminal offense not designated in the third element of burglary, that is not the offense charged in this case; the offense as charged included all of the elements of housebreaking and all of those elements are also elements of burglary; housebreaking is therefore a lesser included offense of burglary).
United States v. Contreras, 69 M.J. 120 (Article 130, UCMJ, outlaws unlawful entry into the building or structure of another with intent to commit a criminal offense therein; the President, however, has narrowed this language, stating that the definition of criminal offense does not extend to an act or omission constituting a purely military offense).
(the MCM limits the application of some offenses listed under Article 134, UCMJ, to military members only; these offenses, such as fraternization and gambling with a subordinate, are purely military offenses; other crimes, however, such as bribery, graft, kidnapping, pandering, and prostitution are not so limited, nor would anyone otherwise consider them to be purely military offenses despite the necessity of proving and pleading that the conduct was service discrediting or prejudicial to good order and discipline).
(the President’s analysis of the punitive articles is persuasive authority and may potentially further limit the application of some punitive articles to military members only, just as he limited the application of the housebreaking statute to cases where the underlying offense was something other than a purely military offense).
(to satisfy the underlying criminal offense element of housebreaking an accused must possess the intent to commit the crime stated in the specification).
(the offense of conduct unbecoming an officer and gentleman under Article 133, UCMJ, is a purely military offense when it constitutes the underlying criminal offense for housebreaking under Article 130, UCMJ; only a commissioned military officer, cadet, or midshipman can commit the offense, and it is only a court-martial that has jurisdiction to prosecute such an offense; therefore, because it is a purely military offense, the offense of conduct unbecoming an officer and gentleman under Article 133, UCMJ, cannot serve as the underlying criminal offense for the purposes of an Article 130, UCMJ, housebreaking charge).
United States v. Davis, 56 MJ 299 (the lawfulness of an entry depends on authorization, negative or positive, express or implied and must be determined based on the circumstances in each case; seven factors are relevant, but not exhaustive, to this question: (1) the nature and function of the building involved; (2) the character, status, and duties of the entrant, and even at times his identity; (3) the conditions of the entry, including time, method, ostensible purpose, and numerous other factors of frequent relevance but generally insusceptible of advance articulation; (4) the presence or absence of a directive of whatever nature seeking to limit or regulate free ingress; (5) the presence or absence of an explicit invitation to the visitor; (6) the invitational authority of any purported host; and (7) the presence or absence of a prior course of dealing, if any, by the entrant with the structure or its inmates, and its nature).
(an entry is "unlawful" if made without the consent of any person authorized to consent to entry or without other lawful authority; the word "authority" is one upon which the very nature of a military organization is based and carries with it the notion that implicit in a grant of authority is the understanding that it will be exercised for proper purposes).
(under the facts of this case, authority to access a key to enter a warehouse carried with it an implicit obligation to enter the warehouse for an official or proper purpose and only to access the segregated area under the unit’s responsibility where: (1) there was evidence that the equipment in the warehouse for which appellant’s section was responsible was segregated from the lodging section’s equipment; (2) while appellant indeed had a key to the warehouse to gain access after hours, his officer-in-charge testified that there was no official need for appellant’s entry at the time in question; (3) the officer-in-charge also testified that he never authorized appellant to enter the warehouse for any purpose other than official business, suggesting a usual course of dealing with respect to access to the warehouse; and (4) the officer-in-charge further testified that his section did not have authority over any portion of the warehouse other than that part containing his section’s equipment).(the purpose for the entry, ostensible or otherwise, remains a relevant factor in determining whether the entry was lawful, i.e., whether the entry was consistent with applicable authority or evidence of the first element of housebreaking).