In an order dated today, CAAF summarily reverses the Army CCA’s decision in United States v. Endsley, 73 M.J. 909 (A. Ct. Crim. App. Oct. 17, 2014), that affirmed the appellant’s pleas of guilty to larceny from a fellow soldier based upon the appellant’s unauthorized use of that other soldier’s debit card.

I wrote about Endsley in this post titled: The Army CCA applies Cimball Sharpton to (erroneously) affirm larceny from a debit card holder. In that post I concluded that the appellant’s offense was a larceny by false pretenses from the merchants where he used the debit card and not a larceny from the other soldier, that the guilty plea was improvident, and that the CCA’s decision should be reversed.

CAAF agrees:

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 victims in the Specification of the Charge were the merchants who provided the goods upon false pretenses, not the debit cardholder/Soldier. However, the charge sheet, stipulation of fact, and the providence inquiry focused on the Soldier as the victim, and there was no discussion on the record of whether the merchants were victimized. See Lubasky, 68 M.J. at 263. Accordingly, it is, by the Court, this 14th day of January, 2015, ORDERED:

That said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO LARCENY OF THE PROPERTY OF SPECIALIST DT WHEN THE ALLEGED LARCENIES INVOLVED THE UNAUTHORIZED USE OF SPECIALIST DT’S DEBIT CARD NUMBER TO OBTAIN THE RETAIL GOODS OF A MERCHANT BY FALSE PRETENSE.

The decision of the United States Army Court of Criminal Appeals is reversed as to the Charge and its Specification and the sentence. The findings of guilty as to the Charge and its Specification are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may either dismiss the Charge and its specification and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected charge and specification and the sentence.

74 M.J. 216 (C.A.A.F. Jan. 14, 2015) (emphasis added).

Notably, I had a similar disagreement with the Army CCA’s unpublished decision in United States v. Conway, No. 20120708 (A. Ct. Crim. App. Nov. 21, 2014) (discussed here). I’ll be watching to see what CAAF does in that case.

3 Responses to “CAAF summarily reverses the ACCA in Endsley”

  1. Mike "No Man" Navarre says:

    Good call, Zee.  Not sure why the CCAs can’t get the false pretenses.  It seems like we were discussing this when I was a first tour Lieutenant at TSO East.

  2. a reader says:

    What if there’s another way to look at it?  If there is consistent disagreement between the CCAs and CAAF on the issue, and it takes  convoluted legal reasoning that includes the somewhat risible conclusion that a person who had their debit card stolen and used to buy a bunch of stuff was not the victim of a crime (if that happened to you would you feel like pizza hut and amazon were the real victims?), maybe it’s fair to ask if our approach is outdated? Turns out it is!  Since the mid-80s, the US Code and state criminal codes throughout the nation have had specific offenses for fraud done via credit/debit cards or “access device.”  The tortuous process of figuring out who satisfies the traditional definition of victim in these crimes, in the era of electronic payment technology, is thereby avoided.  18 USC 1029 seems to have worked pretty well since 1984.  Maybe we can learn from it.

  3. stewie says:

    Well, fraud isn’t larceny so that’s part of the issue. Again, I think most of us sympathetic to ACCA’s position in Endsley also agree that it wasn’t long for this world both because of what the President has laid out in the rules and CAAF precedence.  I disagree with some who assert it’s simply not possible to come up with a logical, rational legal scheme where the cardholder can be the victim just as easily as the bank or the merchant.  We could if we wanted to.  The legal world would keep spinning, dogs would not sleep with cats, mass hysteria would not ensue.
     
    I do think the President gets some say here, and even if I’m/we are right about the above, he’s purposefully limited who the victim can “usually” be, and CAAF has agreed (although for some reason it’s now twice demurred at a chance to give greater clarity with summary judgments).  Nothing surprising about this result.