Opinion Analysis: CAAF explains that unauthorized use of a debit card is a larceny from the financial institution, in United States v. Williams, No. 15-0140/AR
CAAF decided the Army case of United States v. Williams, 75 M.J. 129, No. 15-0140/AR (CAAFlog case page) (link to slip op.), on Tuesday, February 23, 2016. Explaining that larceny in violation of Article 121 requires the theft of something from on with a greater possessory interest, and that larceny involving a debit or credit card is typically a larceny from the financial institution even though the true cardholder may suffer a consequence, the court reverses the decision of the Army CCA and the appellant’s convictions of larceny from two soldiers by unauthorized use of their debit cards.
Judge Ryan writes for a unanimous court. Notably, CAAF did not hear oral argument in this case.
CAAF granted review to determine:
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).
The appellant used the debit cards of two fellow soldiers to make various purchases, and he was charged with two specifications of larceny. Each specification alleged that he “did . . . steal money, of a value of more than $500.00, the property of [another soldier]).” Slip op. at 3-4. At trial the appellant moved for a finding of not guilty under R.C.M. 917, asserting that the soldiers were not the victims of the larcenies. The military judge denied the motion.
The Army CCA affirmed the convictions reasoning that the other soldiers were the:
actual victims in this case. Appellant caused the movement of [PFC Irvine’s and SPC Aldrich’s] money from their control, intending to permanently deprive them and actually depriving them of its use and benefit.” 2014 CCA LEXIS 665, at *13, 2014 WL 7228945, at *5 (citing United States v. Cimball Sharpton, 73 M.J. 299 (C.A.A.F. 2014)).
Slip op. at 4-5. Readers may recall a similar analysis by the Army CCA in United States v. Endsley, 73 M.J. 909 (A. Ct. Crim. App. Oct. 17, 2014), which I analyzed here and concluded was erroneous. CAAF summarily reversed the CCA’s decision in Endsley soon after (discussed here).
Now, reversing the Army CCA and the convictions, Judge Ryan explains:
While it is true that the credit or debit cardholder may also suffer a consequence — such as a bank fee or loss of access to funds in an account — the defendant nonetheless did not obtain money or goods from the cardholder.
The instant case is not an unusual case — there were no agency relationships, no joint accounts, and no contracts. Our unfortunate choice of language in Cimball Sharpton does not change the law, and we urge the Government to cleave to the rule set forth in the MCM in the “usual case.” See MCM pt. IV, para. 46.c.(1)(h)(vi). This is such a case: Appellant’s actions constituted a garden-variety larceny by unauthorized use of debit card information, and the usual rule — that the person who was stolen from, or, in the case of computergeeks.com, from whom larceny was attempted, was the merchant from whom the goods were obtained or the bank from whom money was obtained — applies. The account holders here did not own either the goods or the bank funds available to satisfy the debit card purchases.
While it is both intuitively and objectively true that PFC Irvine and SPC Aldrich were “victims” and “suffered the financial loss[es],” see Cimball Sharpton, 73 M.J. at 299, 301–02, because of Appellant, he neither took nor obtained nor withheld anything from them. Though he was the but-for cause of their financial problems, that does not constitute larceny from them. If a defendant did not steal from the person the government names in the larceny specification, the conviction is legally insufficient. See Lubasky, 68 M.J. at 263, 265.
Slip op. at 10-11.