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.
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Notably, I had a similar disagreement with the Army CCA’s unpublished decision in United States v. Conway, No. 20120708 (A. Ct.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.