In an unpublished per curiam decision in United States v. Conway, No. 20120708 (A. Ct. Crim. App. Nov. 21, 2014) (link to slip op.), a three judge panel of the Army CCA affirms the appellant’s pleas of guilty to larceny from a bank premised on his unauthorized use of another soldier’s debit card. In doing so, the CCA rejects the appellant’s argument “that the larcenies at issue were obtaining-type larcenies of retail goods of a merchant by false pretenses,” rather than larcenies of property from the bank. Slip op. at 3.
Notably absent is an assertion that the victim was the soldier whose debit card the appellant wrongfully used. This is notable because in October the Army CCA issued a published decision in which it found that the account holder is a proper victim because “one who purchases goods with a debit card obtains those goods in exchange for money which results in an immediate deduction from the cardholder’s account.” United States v. Endsley, 73 M.J. 909, 911 (A. Ct. Crim. App. Oct. 17, 2014). I labelled that decision as erroneous in a post titled: The Army CCA applies Cimball Sharpton to (erroneously) affirm larceny from a debit card holder. And I revisited the issue a few weeks ago while reviewing a recent article published by the Army Lawyer in a post titled: Military justice scholarship about larceny involving credit & debit cards.
In Conway, the CCA’s conclusion that the bank was the victim is based on the appellant’s admissions during the plea inquiry:
Appellant explicitly acknowledged TCF Bank had possession of the U.S. currency and that the U.S. currency also belonged to TCF Bank. Appellant further acknowledged that the U.S. currency came from TCF Bank when he made his unauthorized transactions. These factual admissions create a sufficient factual predicate to appellant’s guilty plea. Put more simply, the clear inference from appellant’s admissions is that TCF Bank suffered a financial loss, and thus was a proper victim in this case. Cf. United States v. Cimball Sharpton, 73 M.J. 299, 301 (C.A.A.F. 2014) (“We view this as a case where such an alternative charging theory should apply, given that it was neither the merchants nor U.S. Bank but the Air Force who suffered the financial loss resulting from [a]ppellant’s larceny.”); United States v. Endsley, __ M.J. ___, 2014 CCA LEXIS 786 (Army Ct. Crim. App. 17 Oct. 2014).
Slip op. at 3. The problem with this conclusion is that for a larceny in violation of Article 121, “there must be a taking, obtaining, or withholding of the property by the thief.” MCM, Pt. IV, ¶ 46.c.(1)(b). The appellant obtained products from the merchants where the debit card was used, he did not obtain money from the bank (and I wonder if the bank really suffered a loss; I think it more likely that the loss was suffered by the merchant or a payment processor). Moreover, the citation to Cimball Sharpton is inapt because Cimball Sharpton turned on the fact that the Air Force was obligated to pay for the unauthorized purchases (and CAAF noted that an Air Force instruction states that “The government must seek restitution from the employee for any losses as a result of their improper transaction.” 73 M.J. at 301, n. 2.). There’s no evidence of such an obligation for the bank to pay the merchants in Conway.
Just as I thought the CCA got it wrong in Endsley, I think the court again gets it wrong in Conway.
Read together, the Army CCA’s opinions in Conway and Endsley imply that there’s a wide range of possible victims in a larceny prosecution involving misuse of a debit card. I think CAAF explicitly rejected this possibility in its summary disposition in United States v. Gaskill, 73 M.J. 207 (C.A.A.F. Jan. 27, 2014):
On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010), we note that the proper victim in Specifications 2, 3, and 4 of Charge V was the merchant who provided the goods and services upon false pretenses, not the debit cardholder/Soldier. However, the charge sheet, stipulation of fact, and providence inquiry focused on the three Soldiers as victims, and there was no discussion on the record of whether the merchants were victimized. See Lubasky, 68 M.J. at 263. Accordingly, it is ordered that said petition is granted on the following issue:
WHETHER APPELLANT COMMITTED LARCENIES OF THE PROPERTY OF THREE SOLDIERS BY USING THEIR BANK CARDS WITHOUT AUTHORITY.
The decision of the United States Army Court of Criminal Appeals is reversed as to Specifications 2, 3, and 4 of Charge V, and the findings of guilty as to those specifications are set aside.
Gaskill was also an Army case. The Army CCA’s opinion is available here.
As I wrote in my post analyzing Endsley, a debit card is a credential (that is, a form of identification). When the appellants in Endsley and Conway wrongfully presented another person’s debit card to merchants, they committed obtaining type larcenies from those merchants by false pretenses. The banks were, at most, the victims of a theft of debit services by false pretenses (chargeable as a violation of Article 134. See MCM, Pt. IV, ¶ 78). The account holders were victims only for sentencing purposes. See also Article 6b, UCMJ.
At least, that’s my view. I’ll be watching to see if CAAF agrees.