AFCCA explains that larceny charges involving credit cards aren’t that complicated, and that promotional sweatshirts aren’t allowances
In a published opinion dated September 6, 2013, in United States v. Cimball Sharpton, No. 38027, (opinion) the Air Force CCA affirms the findings of guilty, contrary to Appellant’s pleas, of larceny, fraudulent enlistment, and wrongful use of oxycodone and cocaine, and the sentence of confinement for 12 months, a $20,000 fine (with a 6-month contingent confinement enforcement provision), and a bad-conduct discharge.
The larceny charge involved Appellant’s misuse of her Government Purchase Card (basically a credit card billed direct to the taxpayers), with which she made “apparently unauthorized purchases from places such as the Base Exchange and the Class VI store.” Slip op. at 2. “The Class VI store” is more commonly known as a “liquor store.”
The CCA explains:
At trial, the appellant pled not guilty to a larceny charge and specification based on her misconduct, but she did not contest the underlying facts the prosecution put forth. The prosecution introduced the appellant’s confession to GPC misuse, financial statements from the appellant’s purchases during the charged time frame, testimony from the GPC approving official, receipts from retailers showing the appellant used her GPC on several occasions to buy gift cards and other personal items, security camera footage of the appellant making unauthorized purchases, and testimony of a base financial analyst that the Government pays bills generated by GPC purchases. The prosecution also presented documents showing the Government ultimately paid for the appellant’s unauthorized purchases, a fact to which the parties later stipulated.
The appellant asks this Court to set aside the guilty findings as to Charge I and its Specification because the evidence is not factually or legally sufficient to support her conviction. Specifically, she argues that the victim in this case was not the United States Air Force (as the Government charged), but the GPC merchant, US Bank.
Slip op. at 2-3. And indeed, charging larceny involving fraudulent use of a credit card can be tricky. For instance, “In [United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010)] the appellant was assigned to help an elderly widow with financial matters, but he misused her credit cards to make personal purchases for his own benefit. A court-martial convicted him of larceny of property from the widow. Our superior court, however, held that the victim of the larceny was actually the merchant who issued the credit card or the merchant selling the goods.” Slip op. 4. But a Government Purchase Card is different:
The Government formed a contract with US Bank to have US Bank issue GPCs to authorized cardholders, who were in turn permitted to expend funds only for authorized government purchases. Under this arrangement, the Government appointed the appellant as its representative to obligate Government funds through GPC purchases. US Bank, in turn, issued a GPC in the appellant’s name. The appellant did not steal the card from someone else and pretend to be a different person. Rather, she exceeded the scope of her agreement with the Government by using a card issued in her name to expend credit on unauthorized, personal purchases. Unlike Lubasky, who purported to be an authorized user of the credit card but in fact was not, the appellant here was authorized to use the GPC, but did so in a manner not sanctioned by the Air Force.
Slip op. at 4-5.
Appellant also asserted that the fraudulent enlistment charge was barred by the statute of limitations because, even though Appellant did not raise this issue at trial:
The appellant argues that the statute of limitations began to run on one of two dates: 1) 6 February 2006, when the military paid for the appellant’s overnight stay at a hotel during her MEPS processing, or 2) 26 March 2006, when she received a sweatshirt in return for her efforts in the delayed enlistment program to provide recruiting leads.
Slip op. at 7. Of note, Appellant began active duty in May 2006, and the charges were received by the summary court-martial convening authority in April 2011.
The CCA finds that “there is no evidence of” the provision of a hotel room in February 2006 (slip op. at 8), leaving only the question of whether the provision of a promotional sweatshirt constitutes an “allowance.” But the CCA has “no difficulty finding that the appellant’s receipt of a sweatshirt did not constitute sufficient ‘allowances’ such as to complete the offense of fraudulent enlistment.” Slip op. at 9. The court sees parallels between the “pay or allowances” language in the punitive Article 83 and in the jurisdiction-conferring Article 2(c), and concludes:
it would be illogical to suggest that had the appellant committed another offense on 27 March 2006, the military justice system would have had jurisdiction over her simply because she had accepted a sweatshirt one day earlier
Slip op. at 9.
Presumably this logic extends to all manner of promotional items, like flashlights, t-shirts, and hats.