2016 (October Term)
United States v. Wilson, 76 M.J. 4 (housebreaking requires, inter alia, unlawful entry into a building or structure; a motor pool without walls or a roof, whether fenced or not, is obviously not a building; in addition, a fenced motor pool is not a structure for the purposes of Article 130, UCMJ).
(Article 130, UCMJ, provides that any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking; according to the President’s explanation in the MCM, structure refers only to those structures in the nature of a building or dwelling).
(a fenced motor pool is not a structure subject to housebreaking; both the commonsense meaning of “structure” within a housebreaking offense and the limiting language of the MCM leave no doubt that an open-air fenced area does not fall within the scope of Article 130, UCMJ, because it is not a structure in the nature of a building or dwelling).
,
(the President’s clarification of the terms “building” and “structure” in the MCM provides a nonexclusive list of examples of buildings and structures which are in the nature of a building or dwelling; under the canon ofexpressio unius est exclusio alterius, the enumerated list suggests that any structure in the nature of a building or dwelling must fit within the sort of examples listed in the President’s explanation; and the enumerated areas are all enclosed spaces that serve the same purpose as a building or dwelling, even if some are moveable or temporary rather than fixed and permanent; accordingly, the meaning of a “structure” for the purposes of Article 130, UCMJ, is a more or less permanent constructed edifice, built up of parts purposefully joined together, more or less completely enclosed by walls and covering a space of land, or a building or construction intended to be or used for residence; the fenced motor pool at issue here did not fit within this description, even if the bays within it would; it is a concrete pad surrounded by a fence; the fences are not joined together such that they resemble the enclosure of a building, nor are they joined by a roof; neither are they a permanent structure, as the fences can be easily moved or removed, unlike a motor pool bay; nor is there any evidence in the record that the motor pool was either intended or suited to be a locale or venue where persons would take up residence; the mere presence of a fence cannot transform an outdoor area into a structure in the nature of either a building or a dwelling).
(the fenced motor pool in this case is not a “structure” or a “dwelling” as contemplated by Article 130, UCMJ, because it is not an enclosed space in the same way that a building is and is not a place where persons would take up residence; to the extent that US v. Wickersham, 14 MJ 404 (CMA 1983) is inconsistent with this holding, it is overruled).
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).
2009 (September
Term)
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).
(the
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).