CAAF granted review in the following case on Thursday, April 30:

No. 15-0140/AR. U.S. v. Henry L. Williams III. CCA 20130284.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT COMMITTED LARCENIES OF THE PROPERTY OF TWO SOLDIERS BY USING THEIR DEBIT CARD INFORMATION WITHOUT AUTHORITY. SEE UNITED STATES v. LUBASKY, 68 M.J. 260 (C.A.A.F. 2010).

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. I discussed that opinion in this post last September, but my focus was on the CCA’s finding of plain error in the military judge’s questions to a sentencing witness. However, on the larceny issue, the CCA found:

Electronic commerce and the related increased possibility of larceny by identity-theft have perhaps prompted the following 2002 amendment to the Manual for Courts-Martial: “Wrongfully engaging in a credit, debit, or electronic transaction to obtain goods or money is an obtaining-type larceny by false pretense. Such use to obtain goods is usually a larceny of those goods from the merchant offering them.” MCM, pt. IV, ¶ 46.c(1)(h)(vi). The Drafter’s Analysis includes the proviso that “[a]lternative charging theories are also available . . . . The key under Article 121 is that the accused wrongfully obtained goods or money from a person or entity with a superior possessory interest.” MCM, UCMJ art. 121 analysis at A23-15–A23-16 (internal citations omitted).

Our superior court has clearly affirmed both of these principles. See United States v. Cimball Sharpton, 73 M.J. 299 (C.A.A.F. 2014); United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010). In Cimball Sharpton, CAAF considered a larceny by credit card and held that an alternative charging theory—naming a victim other than the merchant or bank—was viable. 73 M.J. at 301-02. In Lubasky, CAAF stated: “Under Article 121, UCMJ, 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.” 68 M.J. at 263 (emphasis added). The CAAF also recently reaffirmed that the “victim of the larceny is the person or entity suffering the financial loss or deprived of the use or benefit of the property at issue.” Cimball Sharpton, 73 M.J. at 299 (citing Lubasky, 68 M.J. at 263-64).

Appellant now argues that in Specifications 1 and 2 of Charge VI, “the unauthorized use of the debit card information was a common ‘obtaining-type larceny by false pretense’ where the property owner would be either the bank or merchants depending upon who suffered the loss.” (Emphasis added). We partially agree to the extent that appellant draws our focus to the person or entity who suffers the loss in a larceny. We disagree with appellant that the banks or merchants were the only potential victims of appellant’s misconduct. Indeed, PFC BI and SPC JA were actual victims in this case. Appellant caused the movement of their money from their control, intending to permanently deprive them and actually depriving them of its use and benefit. Like in Cimball Sharpton, we hold that under the facts of this case, alternative charging theories were available and PFC BI and SPC JA were properly described as victims in the contested larceny specifications.

Slip op. at 8.

I think it very likely that the Army CCA will be reversed, for reasons I’ve written about repeatedly (such as in my analysis of the Army CCA’s decisions in Endsley and Conway).

3 Responses to “CAAF grants in a new case involving the proper victim of a larceny”

  1. Monday morning QB says:

    I don’t know Z.  I think taking an item from “any entity with a greater possessory interest” than the accused is sufficient, as the MCM notes.  That’s why when an accused uses the govt credit card to put gas in his POV he has committed several larcenies in several ways:  he has stolen gas from the merchant by trick, he has stolen money from the command, and he has stolen money from the bank that issued the card.    

  2. Monday morning QB says:

    You know, if Z is correct, maybe its time to just charge this as a wire or bank fraud under 18 USC 1343 or 1344.  20 year max on the 1343 and 30 years on the 1344.  Those don’t require a victim or even a loss.  An ATM transaction might not create signals that cross state lines, hence the 1344, but almost any other transaction does because they are routed through a Federal Reserve Bank.  Either way, no splitting of legal hairs over victims or loss amounts. 

  3. Zachary D Spilman says:

    Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the code. These are referred to as “clauses 1, 2, and 3” of Article 134. Clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces. Clause 3 offenses involve noncapital crimes or offenses which violate Federal law including law made applicable through the Federal Assimilative Crimes Act, see subsection (4) below. If any conduct of this nature is specifically made punishable by another article of the code, it must be charged as a violation of that article.

    Manual for Courts-Martial (2012 ed.), ¶ 60.c.(1) (emphases added).

    The preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 through 132. For example, larceny is covered in Article 121, and if an element of that offense is lacking—for example, intent— there can be no larceny or larceny-type offense, either under Article 121 or, because of preemption, under Article 134. Article 134 cannot be used to create a new kind of larceny offense, one without the required intent, where Congress has already set the minimum requirements for such an offense in Article 121.

    Id. at ¶ 60.c.(5)(a) (emphasis added).