CAAF will hear oral argument in the Air Force case of United States v. Cimball Sharpton, No. 14-0158/AF (CAAFlog case page) on Tuesday, April 29, 2014. The court will review a single issue:

Whether the Air Force court abused its discretion in finding the evidence legally sufficient to support a conviction for larceny from the Air Force.

Appellant was convicted, contrary to her pleas of not guilty, of multiple offenses including larceny from the United States Air Force by misusing her Government Purchase Card (GPC) to purchase various items for personal use. A GPC is basically a credit card billed directly to the taxpayers. Despite the not guilty pleas, Appellant did not contest the fact of her misuse of the card (she actually tried to enter a conditional plea of guilty). However, on appeal Appellant asserted that the victim of the larceny was not the Air Force, but was some other party (either the bank or the merchants). The Air Force CCA rejected this assertion in a published opinion, deciding that:

[T]he 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.

United States v. Cimball Sharpton, 72 M.J. 777, __, slip op. at 4-5 (A.F.Ct.Crim.App. 2013). Appellant’s assertion that the Air Force was not the victim of her larceny was based on her interpretation of United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010) (link to slip op.). In Lubasky, CAAF considered the misuse of credit and debit cards belonging to one Mrs. Shirley, the elderly widow of a retired officer. Chief Warrant Officer Lubasky was assigned to Mrs. Shirley’s case as a casualty assistance officer, and Mrs. Shirley gave Lubasky limited authorization to use her checking account and credit cards to pay her bills while she was in a nursing home. His name was also added to her checking account, and account statements were sent to his work address. However, Lubasky exceeded his authorization, using Mrs. Shirley’s checking and credit accounts for personal reasons.

Affirming some, but not all, of Lubasky’s convictions of larceny from Mrs. Shirley, a unanimous CAAF explained that “larceny always requires that the accused wrongfully obtain money or goods of a certain value from a person or entity with a superior possessory interest.” Lubasky, 68 M.J. at __, slip op. at 9. But “while the evidence is legally sufficient to support the conclusion that the use made of these credit cards constituted a wrongful taking of property with the requisite intent, we nonetheless agree with Appellant that the unauthorized use of those cards was not a larceny from Shirley.” Id. at __, slip op. at 8. However, with respect to Mrs. Shirley’s checking account, CAAF determined that:

[T]he evidence supports a conclusion that he obtained access to the account as a joint owner by false pretenses — representing to Shirley that he would use her funds in the manner she authorized — with the actual intent to use the funds for his own purposes instead. In using false pretenses to obtain access to Shirley’s UPB account in this manner, Appellant committed larceny against Shirley.

Id. at __, slip op. at 10. Cimball Sharpton presents CAAF with a similar question of victim identification where an accused exceeds the scope of an agency, and Appellant asserts that “the theft in this case involved credit and the proper victims to be alleged were [the merchants], not the United States government.” App. Br. at 8. But the Government’s brief makes an important factual distinction:

[T]he [Anti-Deficiency Act] prohibits an agency of the United States Government from entering into an agreement to obtain credit from an outside source to finance its operations. In this case, the Air Force is prohibited from entering into a traditional credit card arrangement with U.S. Bank. While U.S. Bank may act as a conduit of the funds associated with the Government Purchase Card account, it cannot actually provide credit to the Government.

Gov’t Br. at 7. This fact, and Appellant’s relationship with the Air Force as a purchasing agent with the authority to obligate public funds, distinguishes this case from a typical credit-based larceny.

Unfortunately, it’s not the first argument advanced in the Government’s brief. Rather, the Government’s brief begins with the deeply flawed assertion that the question presented “is an issue of factual rather than legal sufficiency.” Gov’t Br. at 5.

Appellate courts regularly review the legal sufficiency of the evidence presented at trial because a conviction based on inadequate evidence is a deprivation of due process of law. “If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the evidence is legally sufficient.” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In Jackson, the Supreme Court explained that while due process requires proof beyond a reasonable doubt, “a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury.” Jackson, 443 U.S. at 317. Accordingly, the Court explained that:

[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson, 443 U.S. at 318-319 (marks and citations omitted) (emphases in original).

In Cimball Sharpton, the Government’s brief conflates the question of whether the specification states an offense (not an issue before CAAF) with the granted issue of whether the evidence is legally sufficient to support a conviction of larceny from the Air Force. The Government’s brief begins its discussion section with the following:

A. This is an issue of factual, rather than legal, sufficiency. Consequently, Appellant waived this right by failing to object to the larceny specification at trial.

Although Appellant has styled this issue as one of legal sufficiency it is, actually, an issue of factual sufficiency. The distinction between the concepts of legal and factual sufficiency is often fine, but in this case it is apparent that factual sufficiency is in question. Factual sufficiency is beyond this Honorable Court’s purview.

In her brief, Appellant claims, in essence, that she cannot be guilty of the larceny specification because the Air Force was wrong when it identified itself as the victim. If this is true, then it is factually impossible for Appellant to have committed the crime as charged because, according to Appellant, the Air Force has not lost anything of value.

This is not to say, however, that the specification was legally insufficient. Contained within the charged specification of larceny are all four of the required elements: . . . [list of elements omitted] . . . Since the specification was proper in its form, encompassed all the required elements, and properly stated an offense, it placed Appellant on notice of what she was required to defend against. Consequently, the specification is legally sufficient.

Since this is an issue of factual rather than legal sufficiency, Appellant waived this issue by not raising it at trial. And, because under Article 67(c) this Court may only review questions of law, the factual sufficiency of Appellant’s conviction is beyond this Court’s jurisdiction.

Gov’t Br. at 4-5. Besides the fact that CAAF granted review of the issue of legal sufficiency in this case (so Appellant “styled” nothing), the distinction between the concepts of legal and factual sufficiency just isn’t that “fine”:

 The test for legal sufficiency requires courts to review the evidence in the light most favorable to the Government. If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the evidence is legally sufficient.

The test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the court is convinced of the accused’s guilt beyond a reasonable doubt.

Reed, 54 M.J. at 41 (emphases added). Put differently, factual sufficiency review involves independently weighing the evidence and making your own conclusion about guilt or innocence, while legal sufficiency review is just a sanity-check. A court of criminal appeals conducts both factual and legal sufficiency reviews because Article 66(c) states that a CCA may “affirm only such findings of guilty. . . as it finds correct in law and fact.” However, CAAF does not review the factual sufficiency of a conviction because Article 67(c) states that “the Court of Appeals for the Armed Forces shall take action only with respect to matters of law.”

If, as the Government hypothesizes in its brief, it is factually impossible that the Appellant stole from the Air Force, then no rational trier of fact could have found the essential elements of larceny from the Air Force beyond a reasonable doubt, and the conviction is legally insufficient and must be set aside. This is an issue of whether Appellant received due process of law, and is entirely within CAAF’s jurisdiction.

And while this confusion in the Government’s brief is bad, the Government’s brief makes an even greater (and more disturbing) error. Appellant attempted to enter conditional pleas of guilty to preserve a suppression issue, but the Government did not agree to a conditional plea and the judge entered pleas of not guilty. A plea of not guilty to the larceny had the effect of “putting all elements in issue.” United States v. Schap, 49 M.J. 317, 326 (C.A.A.F. 1998). This includes the identity of the “person or entity with a superior possessory interest.” Lubasky, 68 M.J. at __, slip op. at 9. But the Government’s brief asserts that Appellant waived the issue of the sufficiency of the proof that her larceny was from the Air Force:

A guilty plea waives complaints regarding the factual sufficiency of the evidence. While the military judge entered a not guilty to this specification, it must be recognized that Appellant’s plea was a tactical decision solely to preserve a particular motion. At no point did Appellant ever mount a defense to the larceny allegation, and at no point did she contest her guilt. This plea was designed to grant Appellant two windfalls–the ability to preserve her objection to her statement to law enforcement while still being able to argue a guilty plea in mitigation. This was a guilty plea in fact, if not in form. As such, Appellant should not now be able to claim a third windfall by being able to escape the consequences of her conscious decision to lodge no objection to the specification.

Gov’t Br. at 6 (citations omitted). “Guilty plea waiver” is an important concept in appellate practice, but it requires an actual guilty plea. Moreover, Appellant was convicted of larceny from the Air Force. If that is not what she did, then (to borrow a phrase from the legal sufficiency standard) no rational Government attorney could consider reversal of that conviction to be a “windfall.”

But on the issue of the identity of the victim, CAAF will likely use this case to clarify its holding in Lubasky, and perhaps even wade back into the somewhat complex legal and legislative history of the scope of Article 121, about which the court once noted:

This article is intended to combine the [common law] offenses of larceny by asportation, larceny by trick and device, obtaining property by false pretenses, and embezzlement. It is desirable to eliminate the technical distinctions which have heretofore differentiated one type of theft from another and is in keeping with modern civil trends.

United States v. Antonelli, 35 M.J. 122, 124 (C.A.A.F. 1992) (quoting the commentary accompanying the proposed Article 121, Hearings on H.R. 2498 before a Subcom. of the House Armed Services Comm., 81st Cong., 1st Sess. 1232 (1949)).

And the common law offense of embezzlement, involving misuse of a power of attorney, is a pretty good fit for the facts of this case:

In short, the [power of attorney] was the means whereby the agent was able to get his hands on the moneys, but when the moneys were thus obtained, the agent received them as agent for the principal, and the fraudulent appropriation of the moneys thus obtained to his own use constituted embezzlement.

United States v. Willard, 48 M.J. 147, 149 (C.A.A.F. 1998) (quoting State v. Kennedy, 61 N.J. 509, 296 A.2d 65, 66-67 (1972)). CAAF could affirm by finding that a GPC is analogous to a power of attorney that allows the cardholder agent to spend money on behalf of the Government principal. The Government’s assertion that the Anti-Deficiency Act prevents credit transactions (and whether that assertion is supported or contradicted by the record of trial) may prove decisive in this case.

I believe that Appellant stole from the Air Force by misusing her authority to obligate public money, just as the appellant in Willard stole from a fellow soldier by misusing a power of attorney, and the appellant in Lubasky stole from Mrs. Shirley by exceeding his authorized access to her bank account. It will be interesting to see if the Government can stay focused on similar points during next week’s oral argument (and avoid repeating its nonsensical assertions that legal sufficiency isn’t the issue before the court and that Appellant somehow waived any error).

Case Links:
• AFCCA opinion (72 M.J. 777)
Blog post: AFCCA explains that larceny charges involving credit cards aren’t that complicated. . .
• CAAF grants review in Cimball Sharpton
• Appellant’s brief
• Appelllee’s (Government) brief
• Blog post: Argument preview

4 Responses to “Argument Preview: United States v. Cimball Sharpton, No. 14-0158/AF”

  1. Cap'n Crunch says:

    Zach:  You are right on, in terms of the anti-deficiency act argument.  I blame the Appellate Government shop, and its supervisory chain of command, for this one.  I was taught to advance the best arguments first, and the anti-deficiency act argument, is seems to me, is the slam dunk.  Watch the Government Appellate shop butcher the argument, and perhaps even snatch defeat from the jaws of victory.
    I made a mistake as a young attorney without a lot of experience in the nuances 42 USC 1983 law, and sued immune state officials in federal court for injunctive relief, 1988 attorney fees, AND money damages.  The injunctive relief fell under Younger and the case was a solid one.  We get to a hearing and the federal district judge looks at me and asks if I am really sure I want to bring claims for money damages and muddy up an otherwise solid case with attorney fees.  I withdrew it right there on the record, because I had situational awareness to know it was a losing proposition.  Same proposition here.  The case is solid, if the right arguments are advanced.  Lets see how smart Appellate Government is at oral argument.

  2. Bill Cassara says:

    The waiver argument would be funny if it weren’t so sad.

  3. Dude says:

    The waiver argument is … “Creative”.   It’s essentially, “She didn’t plead guilty, but she wanted at some point, so you should treat it as if she actually had pled guilty.”  The natural”creative” counter to that “creative” argument would be for the appellant to assert that the government waived any such argument on appeal when,  at trial, it failed to object to the military judge entering a not guilty plea.  If the government really thought this was a “guilty plea in fac” relieving it of its Constitutional duty to prove the allegation at trial, the it should have spoken up long before now… Instead of setting about trying to prove its case (but falling short).  I don’t see the ADA argument as being that powerful.  Just because it is illegal to commit an ADA violation doesn’t mean it didn’t happen.  If it looks like a credit relationship, and quacks like one, it probably is one.  The fact that the duck isn’t supposed to exist doesn’t change the fact that it’s out there crapping all over everything.

  4. stewie says:

    The waiver argument is … “stupid”.
    I fixed a spelling error Dude.