CAAFlog » September 2015 Term » United States v. Williams (#0140)

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). 74 M.J. 216.

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.

Further:

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.

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).

Back in April, in this post, I discussed the NMCCA’s decision in United States v. Loiacono, No. 201200451 (N-M. Ct. Crim. App. Mar. 25, 2014), rev. denied, 73 M.J. 452 (C.A.A.F. Jul. 29, 2014), in which the CCA rejected the appellant’s claim  of judicial bias arising from improper questioning of a witness by the judge that led to improper testimony from the witness (requiring what the CCA called a “strong curative instruction,” slip op. at 31).

Now, in United States v. Williams, No. 20130284 (A. Ct. Crim. App. Aug. 28, 2014) (link to slip op.), a three-judge panel of the Army CCA finds plain error in a military judge’s questions to a sentencing witness. The Government repeatedly tried to elicit testimony from the witness about the effect of the appellant’s offenses on the unit. But that testimony was focused on the administrative after-effects, with observations such as:

CPT JF: Okay. Well besides the soldiers being upset that he wasn’t receiving a punishment and they had, there was even threatening against him, especially when the barracks incidents happened; that they wanted to take into his [sic] own hands because they felt justice wasn’t being served to him fast enough. When it came to — our unit was extremely busy with a lot of missions at the time. When it came — I had to bring NCOs out to escort him around to make —-

Slip op. at 9-10. The problem with this testimony is that a service member’s invocation of the right to refuse administrative punishment and require that the Government conduct a court-martial, and any associated delay, is not a matter in aggravation. Neither is the fact that others the his unit contemplated vigilantism. The Defense repeatedly objected to the questions, and the judge sustained the objections. But then the judge questioned the witness:

MJ: [CPT JF], you talked about the impact on the unit about the other soldiers observing what they felt was the slow pace of justice and wanting to take matters into their own hands. What do you base that observation on?

CPT JF: Yes, sir. I mean, rumors and hearsay had gotten to me that they were threatening beating him down.

MJ: And how was that transmitted to you?

CPT JF: Through NCO channels, like, “Hey, sir. These soldiers want to beat him up.”

Slip op. at 10. The Defense did not object to the judge’s questions.

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