CAAFlog » September 2013 Term » United States v. Cimball Sharpton

CAAF decided the Air Force case of United States v. Cimball Sharpton, No. 14-0158/AF, 73 M.J. 299 (CAAFlog case page) (link to slip op.) Friday, June 13, 2014. The court affirms the published opinion of the Air Force CCA that found Appellant’s conviction of larceny from the Air Force, by misusing her Government Purchase Card (GPC) to purchase various items for personal use, to be legally sufficient, and rejects Appellant’s argument that that the victim of the larceny was not the Air Force but was some other party (either the bank or the merchants).

Chief Judge Baker writes for a unanimous court.

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). CAAF then granted review of 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.

Chief Judge Baker’s opinion has the bottom line up front: “In this case, as in United States v. Lubasky, 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. 68 M.J. 260, 263-64 (C.A.A.F. 2010).” Slip op. at 2. The entire opinion is only nine pages long, and the most substantive discussion is found in just four paragraphs:

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Audio of this week’s oral arguments is available at the following links:

United States v. Moon, No. 13-0536/AR (CAAFlog case page): Argument audio.

United States v. Davenport, No. 13-0573/AR (CAAFlog case page): Argument audio.

United States v. Cimball Sharpton, No. 14-0158/AF (CAAFlog case page): Argument audio.

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.

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Last week CAAF granted review in the Air Force case of United States v. Cimball Sharpton:

No. 14-0158/AF.  U.S. v. Candice N. CIMBALL SHARPTON.  CCA 38027.  Review granted on the following 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.

Briefs will be filed under Rule 25.

I discussed the AFCCA’s decision in this case back in September, in a post entitled AFCCA explains that larceny charges involving credit cards aren’t that complicated, and that promotional sweatshirts aren’t allowancesThe larceny charge involved Appellant’s misuse of her Government Purchase Card (GPC) (basically a credit card billed direct to the taxpayers), with which she made “apparently unauthorized purchases from places such as the Base Exchange and the Class VI store.” AFCCA slip op. at 2. “The Class VI store” is more commonly known as a “liquor store.” In affirming the conviction, the AFCCA explained, “The prosecution also presented documents showing the Government ultimately paid for the appellant’s unauthorized purchases, a fact to which the parties later stipulated.” Slip op. at 3.

I think the facts differentiate Cimball Sharpton from other credit/debit card larceny cases. The misuse of the the GPC in this case involved an abuse of an agency to fraudulently obtain something at the expense of the principal, while typical bank/debit card cases are really a misuse of credentials to steal from a third party (i.e., impersonating someone else with their card and PIN – a two-factor identification – to steal from the bank). But we’ll see if CAAF feels differently.

In a published opinion dated September 6, 2013, in United States v. Cimball Sharpton, No. 38027, (opinion) the Air Force CCA affirms the findings of guilty, contrary to Appellant’s pleas, of larceny, fraudulent enlistment, and wrongful use of oxycodone and cocaine, and the sentence of confinement for 12 months, a $20,000 fine (with a 6-month contingent confinement enforcement provision), and a bad-conduct discharge.

The larceny charge involved Appellant’s misuse of her Government Purchase Card (basically a credit card billed direct to the taxpayers), with which she made “apparently unauthorized purchases from places such as the Base Exchange and the Class VI store.” Slip op. at 2. “The Class VI store” is more commonly known as a “liquor store.”

The CCA explains:

At trial, the appellant pled not guilty to a larceny charge and specification based on her misconduct, but she did not contest the underlying facts the prosecution put forth. The prosecution introduced the appellant’s confession to GPC misuse, financial statements from the appellant’s purchases during the charged time frame, testimony from the GPC approving official, receipts from retailers showing the appellant used her GPC on several occasions to buy gift cards and other personal items, security camera footage of the appellant making unauthorized purchases, and testimony of a base financial analyst that the Government pays bills generated by GPC purchases. The prosecution also presented documents showing the Government ultimately paid for the appellant’s unauthorized purchases, a fact to which the parties later stipulated.

The appellant asks this Court to set aside the guilty findings as to Charge I and its Specification because the evidence is not factually or legally sufficient to support her conviction. Specifically, she argues that the victim in this case was not the United States Air Force (as the Government charged), but the GPC merchant, US Bank.

Slip op. at 2-3. And indeed, charging larceny involving fraudulent use of a credit card can be tricky. For instance, “In [United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010)] the appellant was assigned to help an elderly widow with financial matters, but he misused her credit cards to make personal purchases for his own benefit. A court-martial convicted him of larceny of property from the widow. Our superior court, however, held that the victim of the larceny was actually the merchant who issued the credit card or the merchant selling the goods.” Slip op. 4. But a Government Purchase Card is different:

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