Robbery and BurglaryDefense in the Military

Reconstruct Who Was There and What Actually Happened

We compare the accusation with the available surveillance video, entry records, duty rosters, messages and witness accounts. A witness who saw you in the building has not necessarily seen you take property, threaten anyone or enter a restricted room. We ask what each witness actually saw, when the witness first described it, and whether later accounts changed. If identity is disputed, lighting, distance, familiarity and the time available to observe can matter. If you were elsewhere, we look for records and witnesses that can support that account.

Challenge the Taking and the Right to Possession

The definitions and elements in the UCMJ and the Manual for Courts-Martial can blow up the prosecution’s case when wielded by an experienced attorney. A robbery charge requires proof of a wrongful taking and that the property belonged to another person. Ownership, possession and the right to possession need to be examined; they are not always the same thing.

That gives the defense the opportunity to bring into question whether or not the alleged victim indeed had a greater right to possession of the property. If you went and kicked PFC Smuckatelli in the back for taking your last can of Zyn in the field, who had the right to that property matters. But calling it yours does not automatically defeat a robbery charge, and it does not excuse an assault. There may be a very reasonable explanation for why you did what you did. As they say, there is only one thief in the Marine Corps and everyone else is just getting their stuff back.

We look for purchase receipts, serial numbers, hand receipts, issue and turn-in records, and messages about loans or permission. Those records can establish whose property it was, who was entitled to possess it, and whether a supposed theft was actually an authorized transfer. Government gear does not become yours because it was issued to you or left unattended. Nor does an unpaid debt necessarily give you a right to take the other person’s property.

Examine the Alleged Force, Threat or Fear

As it pertains to robbery, the prosecution must prove a wrongful taking of property of value from another person or in that person’s presence, against that person’s will, through force, violence or the legally required fear of injury. The military exists in an aggressive dog eat dog culture. When a Marine says, “Give me that jalapeno cheese or I’m going to jack you up,” that may be his way of saying pass the salt. The words and the circumstances both matter. It is easy to infer a threat from military banter when no actual threat exists, but calling something a joke does not make a genuine threat disappear.

We examine the actual words, tone, conduct and sequence of events. Did the alleged force precede or accompany the taking? What did the other person do or say at the time? Do witnesses, recordings or contemporaneous messages support the allegation? If the case rests on fear, what injury was threatened, and did that fear exist when the property was taken? The absence of an injury does not by itself defeat robbery. The law can also reach fear of future injury and certain threats to property, not just a punch or a weapon pointed at someone.

If the government cannot prove the force or fear required for robbery, we examine whether it can prove a different property offense at all. Larceny or wrongful appropriation is not an automatic fallback. Each has its own elements. In particular, the distinction between a permanent and a temporary deprivation can matter under Article 121; saying “I was only borrowing it” does not excuse an unauthorized taking.

Test the Breaking, the Entry and the Alleged Intent

Under Article 129, the prosecution must prove the following elements of burglary:

1. 1You unlawfully broke and entered the building or structure of another.
2. 2You did so with the intent to commit an offense punishable under the UCMJ.

The Manual for Courts-Martial clarifies that an “entry” must be effected before the offense is complete, but the entry of any part of the body, even a finger, can be sufficient. We can dispute whether an entry actually occurred, whether it was unlawful, and whether the government can prove the required intent.

Breaking does not require a smashed window or a kicked-in door. Opening a closed door can qualify. Merely walking through an already open doorway generally does not establish an actual breaking, although deception or intimidation can amount to a constructive breaking. Permission to enter the barracks does not necessarily include permission to open a closed door into someone else’s room. We examine photographs, door and lock conditions, access rules, the people authorized to give permission, and the actual limits of that permission.

The alleged criminal intent must exist at the time of both the breaking and the entry. We examine why you went there, what you were told to do, what you said beforehand, what you brought with you and what happened once you were inside. A later decision to take something does not automatically prove that intent existed when you entered. On the other hand, the government does not have to prove that you completed the crime you allegedly intended to commit.

Burglary does not have to happen at night or in someone’s home. Article 129 also covers a separate offense, unlawful entry, which does not require proof of a breaking or an intent to commit another crime. Defeating a burglary allegation therefore requires us to examine any remaining unlawful entry allegation as well. A locker, a room and a supply building also present different questions about the property the statute protects.

Review the Searches and Statements Used Against You

When investigators rely on a phone extraction, a barracks search or a statement, we examine how they obtained it. The search authorization, its scope, any claimed consent, the rights warning and the actual interview recording can matter. An agent’s summary may leave out a qualification, describe an uncertain answer as an admission, or omit the question that prompted it. We compare the summary with the original recording when one exists and assess whether there is a supported basis to challenge the statement or the search. A procedural error does not automatically make all evidence inadmissible.

That work informs the decisions that follow: whether to challenge the charges before trial, seek suppression of particular evidence, confront a witness with a conflicting account, or negotiate from a documented weakness in the government’s case. If the admissible evidence presents a serious risk of conviction, we explain that risk and the available choices. Preparing to fight the case and giving you candid advice belong together.